This case is the separate appeal of Fannie W. L’Engle, as executrix of Edward M. L’Engle, deceased, from an interlocutory order sustaining exceptions to a separate answer filed by her testator, and adopted by her, in a сhancery suit to foreclose a mortgage, in which the appellee was complainant, and the appellant and others were defendants. The title of the case, as above stated, is its title as adopted by the partiеs, and as set forth in the calendar of the court. Proceedings in summons and severance have been had in the case, but whether any necessity existed for such proceedings, it is useless to say. The .other parties not being before the сourt at all, the title of this case should be Fannie W. L’Engle, as executrix, appellant, vs. George R. Fairbanks, appellee.
So much of the facts of the case as are necessary to be stated in order to dispose of the controversy between the present parties, very much condensed in statement, are as follows: Fairbanks, the appellee, who, for greater convenience, is hereinafter called the complainant, alleged in his bill of сomplaint, filed September 24th, 1889, the execution of a mortgage by one T. B. Ellis, who was made a party defendant, to the complainant upon certain tracts of land situated in Alachua county, Florida; said mortgage was executed Fеbruary 20th, 1875, and was duly recorded March 11th, 1875. It was given to secure the payment of four promissory notes, of even date with the mortgage, each for the sum of six hundred dollars, and becoming due and payable respectively on the first day in January оf each of the years of 1876, 1877, 1878 and 1879, but bore interest from date, and were executed by said
The answer of the said Edward M. L’Engle admitted the material allegations of the bill of complaint. Greatly condensed, its further allegations are to the effect that the lands which had been released by the complainant to the mortgagor, Thomas B. Ellis, were of greater value than the amount remaining due upon the mortgage debt at the time the release was made, and were at the time of the making of the mortgage, and at all times since up to the time of the filing of the answer, far greater in value than the whole original amount of the mortgage debt. The answer further alleged that at the time of the execution of said release, and long before said time, the complainant had notice and knowledge, both actual and constructive, of the conveyance by the mortgagor, Thomas B. Ellis, to said Edwin W. L’Engle, and of the lands which were included in the same, and that complainant, at said time and before, had notice of other sales and conveyances made by said Ellis sufficient to put him upon inquiry. The answer also alleged that complainant had failed to pursue his remedy upon the promissory notes against the makers thereof, both of whom were solvent, and from whom the debt could have been collected, until said notes had become barred by the statute of limitations. , The answer claimed that by reason of the facts alleged the complainant could not maintain his suit.
The complainant excepted to all of the affirmative material allegations of the answer, by paragraphs, upon the ground of insufficiency, that the matters
Two questions of law are presented by the record: First, whether a release from the lien of a mortgage by a mortgagee to a mortgagor of a part of the land mortgaged prevents the mortgagee from foreclosing the mortgage against the mortgaged land not released, where such land not released had previous to the release bеen sold and conveyed by the mortgagor to a third party, and of which sale and conveyance the mortgagee at the time of such release had notice and actual knowledge;, second, whether a failure to pursue the remedy at law upon the promissory note of solvent makers, which are secured by a mortgage upon real estate, until such notes are barred by the statute of limitations and the makers become insolvent, prevents the enforcement of the mortgaged lien upon the mortgaged premises as against purchasers of the same. The first proposition must be answered in the affirmative. It is a familiar doctrine, and sustained by many authorities, that where lands are mortgaged to seсure a debt, and a part of said lands are subsequently sold and conveyed by the mortgagor, the portion unsold is primarily liable under the mortgage. A release subsequently given by the mortgagee, without the assent of the purchaser of the part sold,, to the mortgagor of the portion unsold, will not prejudice the rights of such purchaser if the mortgagee gave such release with notice or knowledge of the
. It will be noted that we have above stated that a release by a mortgagee to a mortgagor of land primarily liable to the lien of a mortgage has the effect to discharge wholly оr pro tanto the land which has been sold by the mortgagor, when such release was made without the assent of the purchaser. In this case the pleadings are far from being as clear and definite as-they should be upon this subject, and have occasiоned us some difficulty. The bill contains no express allegation that the release by the mortgagee was with the assent of the purchaser. The only averment upon that subject is, -that Edwin W. L’Engle, through whom
Our attention has been called to the case of Jordan vs. Sayre,
The second proposition stated must be settled in the negative. It is settled beyond any doubt or cavil in this State that the fact that the remedy аt law Is barred by the statute of limitations upon promissory notes secured by a mortgage under seal does not affect the lien of the mortgage, and that such lien is only affected by the longer term which by the statute is applied to sealed instrumеnts. Jordan vs. Sayre,
In disposing of this case we have considered simply the exceptions as made to the answer, and whether the same were well taken.
The decree appealed' from is reversed with directions that such further proceedings be had in the case as may be in accordance with equity and this opinion. J