36 Fla. 591 | Fla. | 1895
It is entirely clear from the evidence in this case that the debt from J ames K. Munnerlyn to appellants, and evidenced by the' notes, dated November 12th, 1885, and secured by the mortgage of date December 19th of that year on lot six (6), block three (3) of Dwight’s-subdivision of the town of Clear Water Harbor and the wharf extending into the water of said harbor from the foot of Cleveland street, was tona fide and has never been paid. At the time of taking said mortgage Munnerlyn, did not owe any debt except that represented by the notes secured by the mortgage, and appellant supposed he was solvent and prosperous. The testimony of C. B. Rogers, Edward A. Chaplain and James K. Munnerlyn all show that the said mortgage-
We are unable to conclude that there was any fraud in fact intended by the parties in the execution of the mortgage of December, 1885, or in any of the transactions between the parties, and the uncontradicted evidence of appellants removes any unfavorable inferences of a fraudulent intent in fact that may arise from the failure to record the mortgage for the length of time shown. There was no agreement between the parties not to record the mortgage, as insisted for appellees, and whatever validity attaches to this mortgage must appear upon its face and the course of dealing under it. It is insisted that the martgage is void because it embraces a stock of merchandise and the mortgagor was permitted to retain possession and dispose of the goods in the usual course of trade without .■accounting to the mortgagees for the proceeds. The testimony of Munnerlyn sliovrs that he retained possession of the stock of goods described in the mortgage and disposed of them in his usual course of business, and according to our decisions the mortgage was void as to creditors so far as the merchandise is concerned, Eckman & Vetsburg vs. Munnerlyn, 32 Fla. 367, 13 South. Rep. 922; Einstein & Lehman vs. Mun
No claim is made in this suit to the goods, and we have presented the question whether the mortgage is void as to the real estate therein described on account of the clause in reference to the personal property, and the dealings therewith by the mortgagor. This question has never been settled by this court, and the decisions on it in other States are conflicting. The view taken by several courts is that the mortgage deed being void in part, is void as an entirety, but therearg many decisions to the contrary. It is said in United States vs. Bradley, 10 Peters, 343, “that bonds and other deeds may, in many cases, be good in'part and void for the residue, where the residue is founded in illegality, but not malum in se, is a doctrine well funded, in the common law and has been recognized from a very early period.” We will not enter upon a review of the decisions bearing on the question, but will simply state the rule which, in our judgment, is supported by the better reason and authority. It is, that-when a mortgage covers a stock of merchandise, and also real estate, and is constructively void as to the-goods on account of the mortgagor’s right to continue-in possession and sell the goods in the usual course of trade, but there is no fraudulent intent in fact in the execution of the mortgage, it will be valid as to the real estate. Davenport vs. Foulke, 68 Ind. 382, S. C. 34 Am. Rep. 265; Barnet vs. Fergus, 51 Ill. 352, S. C.. 99 Am. Dec. 547; Lund vs. Fletcher, 39 Ark. 325; S. C. 43 Am. Rep. 270; Hayes vs. Wescott, 91 Ala. 143,. 8 South. Rep. 337; Bullene vs. Barrett, 87 Mo. 185; State vs. Tasker, 31 Mo. 445. In New York, and the-States following her decisions, the rule seems to be-different.
The facts in the case are, that Munnerlyn became indebted to Eckman & Yetsburg and Einstein & Lehman after the execution of the mortgage of December, 1885, and before its record in 1888, but they did not sue out attachments and seize the property of Munnerlyn until something over two months after said mortgage had been recorded. They had knowledge of this mortgage before, any attachment suits were instituted by them, and, in our judgment, their liens were subordinate to the lien of the mortgage of 1885. Prom what has been said it is apparent that the court erred in dismissing appellant’s bill. As to lot six (6) and the wharf described in the first mortgage, they had a superior lien and it should have been enforced. It is conceded on the record that tile attachments sued out
The decree is reversed for further proceedings in accordance with this opinion. Ordered accordingly.