73 Fla. 217 | Fla. | 1917
Lead Opinion
The appellee filed her bill to foreclose a mortgage given by Rubie C. Connor and her husband to James M. Elliott in 1908. Separate demurrers were interposed to the bill by the several defendants, which demurrers were overruled! From the order an appeal was taken. The questions presented have been discussed in the case of Ocklawaha River Farms Company v. Jefferson D. Young, et al., decided this day.
The order of the Chancellor overruling the demurrer is affirmed upon the authority of that case.
Rehearing
On Petition for Rehearing
—This case was decided at the present term of the court upon the authority of Ocklawaha River Farms Company v. Jefferson'D. Young, et al.
Petitions for a rehearing have been filed in behalf of Claude E. Connor, Noble W. Harrison, Jefferson D. Young, Gus A. Waters, Margaret J. Pickard and the Ocklawaha River Farms Company.
Nena Kyle Elliott as executrix of the last will and testament of James M. Elliott Jr., exhibited her bill in the Circuit Court for Marion County against Rubie C. Connor and Claude E. Connor, Margaret J. Pickard, Jefferson D. Young, Thomas S. Kyle, Noble W. Harrison, Ocklawaha River Farms Company,-Munroe & Chambliss National Bank and G. A. Waters to enforce a mortgage lien upon certain lands owned by Rubie C. Connor. The mortgage was executed by Rubie C. Connor and her husband Claude E. Connor in March, 1908, to secure an indebtedness due by Claude E. Connor to J. M. Elliott Jr. It was in the form of a warranty deed and expressed a consideration of Five thousand dollars. The deed was properly acknowledged for record and duly filed in the office of the Clerk of the Circuit Court for Marion County, in March, 1908.
In' 1909 Mrs. Connor by her next friend Jefferson D. Young instituted a suit in chancery in the Circuit Court for Marion County against her husband, Claude E. Connor, and James M. Elliott Jr-., to declare the deed to be a mortgage to secure the indebtedness of her husband to J. M. Elliott Jr., prayed for an accounting as to
Margaret J. Pickard, according to the bill, held a mortgage on lands in Range 16 from Rubie C. Connor and her husband dated March 20, 1908, a few days prior to the date of the mortgage to Elliott. The lands as described in the latter mortgage, however, were in Range 24, and the bill alleged that Margaret J. Pickard had filed her bill to reform the description of the lands by changing the Range from 16 to Range 24, and to foreclose the lien which was claimed to be superior to the Elliott mortgage lien. The bill in this case alleg'es that J. M. Elliott Jr.
The bill alleges that the claims of Thomas' S. Kyle and Jefferson D. Young, who claim under a deed from Rubie C. Connor and her husband dated March 19, 1909, and a mortgage dated the same day from Rubie Connor and her husband to Thomas S. Kyle upon the same lands to secure the sum of five thousand dollars, and a deed to Thomas S. Kyle and J. D: Young from Rubie Connor and her husband dated January 14, 1910, con-, veying an undivided one-fourth interest in certain other lands embraced in the Elliott mortgage, for a consideration of ten dollars and other valuable considerations, all arose after the execution of the mortgage to Elliott, and with full knowledge on the part of Thomas S. Kyle and.J. D. Young of Elliott’s deed and his superior lien upon the lands. It was also alleged that in March, 1909, a Lis Pendens .was filed by Ruby Connor in the suit against Elliott and her husband to declare the deed absolute in form to be a mortgage, and for an accounting and the right to redeem, and that Thomas S. Kyle and J. D. Young.had agreed to pay off and discharge “whatever decree should be rendered bjr the court in the said case of Rubie C. Connor by her next friend Jefferson D. Young v. Claude E. Connor and J. M. Elliott Jr.” That Kyle and Young had permitted part of the lands to be sold for taxes and Joseph Balfour to obtain a tax deed therefor, who had quit-claimed to them in July, 1910. This act is alleged to have been done in fraud and for the pur-pose of defeating the claim of J. M. Elliott.
The bill also alleges that in April, 1913, Rubie C. Con-
The bill also alleges that in January, 1913, T. S; Kyle and J. D. Young, in order to cloud the title to the property, and with full knowledge of the rights of J. M. Elliott Jr., conveyed the lands by warranty deed to Z. C Chambliss as Trustee, also in the same month executed to the same person as Trustee a quit-claim deed to certain of the lands and “a deed” to certain other of the lauds, and that in February, 1913, Z. C. Chambliss, as Trustee, and his wife conveyed to the Ocklawaha River Farms Company the lands described for a consideration of one dollar and other valuable considerations. It was alleged in the -bill that Z. C. Chambliss had no interest or claim in or to the property, and that he acted for T. S. Kyle and J. D. Young for the purpose of getting the title out of them; that he paid no consideration for the property, nor did the Ocklawaha River Farms Company pay any consideration therefor. That the corporation was organized by T. S. Kyle, William Hocker and D. H. Kirkland under an agreement with J. D. Young ; that Kyle owns 200 shares of the stock and Kirkland and Hocker two shares each; that Kyle is president, Kirkland vice-president and Hocker secretary and treasurer; that Young owns or claims part of- the stock which appears in the name of Kyle, and that the officers and stockholders had constructive and actual knowledge of the rights of J. M, Elliott Jr. and of the decree that had been rendered in the case of Rubie Connor, by her next friend J. D. Young',
The bill also alleges that in November, 1914, the Ocklawaha River Farms Company, by T. S. Kyle as President, executed to'Munroe & Chambliss National Bank of Ocala a “Trust Mortgage” reciting therein a security of $50,000.00. That the mortgage is subordinate to the mortgage lien of Elliott, and all the parties had knowledge of their rights thereunder. That in September, 1914, the Ocklawaha River Farms Company quit-claimed to G. A. Waters a certain part of the lands, and that the said Waters had full knowledge and notice of the rights • and interests of J. M. Elliott Jr. and of the complainant, and that Waters’ claims are subordinate to the lien of the Elliott mortgage lien. That T. S. Kyle and J. D. Young, in order to cloud the title to the property, had allowed a great part of it to sell for taxes and had procured D. H. Kirkland, a stockholder in the Ocklawaha River Farms Company, to obtain tax deeds therefor.
The bill prayed for the enforcement of the Elliott mortgage lien, the payment by Rubie C. Connor and Claude E„ Connor of the amount adjudicated to' be due with costs and interest, and in default thereof that the property be sold and the proceeds applied to the payment of the debt secured -by the Elliott mortgage as decreed; that the Margaret J. Pickard mortgage be decreed 'to be a subordinate lien to the Elliott mortgage, and that after the sale Rubie C. Connor, Claude E. Connor, Margaret J. Pickard, J. D. Young, T. S. Kyle, N. W. Harrison, Ocklawaha River Farms Company, Munroe & Chambliss National Bank of Ocala and G. A. Waters and each of them, and all persons claiming by, through or under them.
Demurrers were interposed to this bill by Rubie C. Connor, C. E. Connor, Munroe & Chambliss National Bank of Ocala, Ocklawaha River Farms Company, Margaret J. Pickard, T. S. Kyle, G. A. Waters, N’. W. Harrison, and J. D. Young, all of which were overruled. From which order the above named defendants appealed.
Now in the case of Ocklawaha River Farms Company, appellant, v. J. D. Young, et al., appellees, decided at this term, the validity of the deed from Rubie C. Connor and her husband C. E. Connor to J. M. Elliott Jr., executed in 1908 and described in this cause, was involved, and we held that the debt due by C. E. Connor to J. M. Elliott, Jr. was a live valid enforceable obligation, and constituted a sufficient consideration for the execution of the same as a mortgage b}'' the husband and 'wife; that the instrument was a-valid obligation, and that at the time of its execution the Ocklawaha River Farms Company, which did not become a purchaser until 3>-ears afterwards had acquired no interest or claim to the property-; that it was charged with notice as to the existence of the liens and incumbrances upon the land which the record might -have' disclosed; that the deed to Elliott from the Connors had been recorded, and. the appellant therefore had constructive notice of its existence when it purchased; that in the transaction between the Connors - and Elliott in 1908 there was no injury to the appellant* Ocklawaha River* Farms Compai^q nor \yas there any element of fraud in it; that the appellant'was bound by the prior deed, he was charged with notice of' its existence, and by common’prudence and ordinary diligence
The bill in this case alleged that Claude E. Connor was a party to the suit instituted by his wife against him and James M. Elliott in the Circuit Court for Marion County, to declare the deed to* be a mortgage and for an accounting from Elliott as to the amount of indebtedness due by Claude E. Connor and for the right to redeem the land from the lien to secure such indebtedness. 'That suit was referred to in the case of Ocklawaha River Farms Company v. J. D. Young et al., in which we distinctly held that Mrs. Connor and Elliott were bound by the litigation. .Although we did not specifically state that the other party defendant, Claude E. Connor, was also bound by it, we think that upon' the authority of that case alone we were correct in holding- that he was.
His petition therefore for aV rehearing upon the ground that he was not bound by the proceedings and decree in the Connor case, and that we had not so held, is without merit and should be denied. As party defendant in the suit brought by his wife against him and J. M. Elliott Jr. he had fiis opportunity to show the amount of indebtedness due by him to Elliott, a matter in which he, was personally interested, and which was one of the objects of the suit and the reason doubtless for his being made a party to it. We think the decree is res ad judicata as to him.
G. A. Waters was a grantee by quit-claim deed of’ the Ocklawaha River, Farms Company in September, 1914, and J. D. Young had actual knowledge of the transaction between the Connors and Elliott and was party to the suit as next friend of Mrs. Connor in which the deed was held to be a mortgage and the debt.ascertained, which decree was binding upon the parties toThe suit as well as those claiming under them with notice actual or constructive as to the existence of the mortgage lien.
The petitions for rehearing- are,' therefore, severally denied. ‘ .