54 Fla. 563 | Fla. | 1907
— The appellee a.s complainant below filed his bill in equity in the circuit court of Suwannee county against the appellants as defendants below, for the foreclosure of a mortgage and therein prayed for an injunction to restrain the defendants from disposing' of the properties alleged to’ have been mortgaged, and for the appointment of a receiver for such properties. Injunction was granted as prayed and a receiver was appointed to take charge and control of the mortgaged properties. The defendants upon a demurrer and answer to the bill moved for dissolution of the injunction and discharge of the receiver, but such motion was denied, and to have these rulings reviewed the defendants have appealed here.
From the allegations of the bill it appears that the defendant, J. E. Davis, was conducting a saw-mill and naval stores or turpentine business in the county of Suwannee, and being in need of ready cash with which to pay off his labor and other pressing demands obtained advancements of cash from1 the complainant, and to se
The motion of the defendants to dissolve the injunction, etc., assails the sufficiency of the description of the property in the mortgage taking the ground that such description is too vague, indefinite and uncertain to identify any specific property.
It must be borne in mind that the contest here is directly between the parties to the mortgage. As to the description of the property mortgaged the rule is correctly stated in 6 Cyc. 1022 as follows: “As against third persons the mortgage must point out the subject-matter so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests; but between -the parties it is only-necessary to identify the chattels so that the mortgagee may say with a reasonable degree of certainty what property is subject to his lien.” Green v. Rogers, 62 Ga. 166; Ranck v. Howard-Sansom Co, 3 Tex. Civ. App. 507, 22 S. W. Rep. 773. In the case last cited it is held that in a case of a general description of property in a mortage parol evidence is admissible to more clearly identify the property.
As between the parties to this mortgage we are of the opinion that the description of the property intended to be mortgaged is sufficient to sustain the lien, and that parol evidence will be admissible to definitely identify any property covered thereby, the criterion being that such property was owned by either of the defendants, J. E. or L. M. Davis, in the county of Suwannee at any time since the execution of the said mortgage.
The said motion also claims dissolution of the injunction upon the ground that the answer of the de
We think the bill makes out a case entitling the complainant to a foreclosure of his mortgage, provided he can now locate and identify any of the property intended to be covered thereby, and we think further that from the allegations of the bill and the affidavits adduced on the motion to dissolve the injunction in support of said bill that the court below did not err in granting such injunction nor in appointing a receiver of the mortgaged properties, nor in his refusal to dissolve such injunction or to discharge the receiver.
The orders and decrees appealed from are hereby affirmed at the cost of the appellants. It is assigned as error here that the circuit judge in fixing the conditions, under the statute, of the supersedeas bond on appeal prescribed an erroneous condition for such bond. A's was held in the case of Howell v. Commercial Bank, 51 Fla. 460, 40 South. Rep. 76, this is not a matter upon which error can be assigned on an appeal from decrees or orders preceding such appeal.
Cockrell, Hocker, Whitfield, .and Parkhill„ JJ., concur.
Shackleford, C. J., absent on account of sickness in his family.