63 Fla. 434 | Fla. | 1912
— This appeal is from a decree in a foreclosure proceeding. It appears that in June, 1907, L. C. Bannerman executed his note for fl,000.00, payable two years after date, to the order of D. Hale Wilson, with interest at the rate of eight per cent per annum from date until paid; that a mortgage on certain land was given to secure the payment of the note; that the mortgage was duly recorded June 17, 1907; that thereafter during the year 1908 before the maturity of the note the said D. Hale Wilson, for a valuable consideration, endorsed the note to E. A. Fernauld and executed to her' an assignment of the said mortgage; that on July 16,. 1909, Bannerman and wife conveyed to the land to Joseph R. Garrett; that the assignment of the mortgage'by Wilson to Fernauld was never recorded; that after the assignment of the note and mortgage by Wilson to Fernauld, the said Wilson without the knowledge and consent of Fernauld and without authority from Fernauld,
The statute provides that “no conveyance, transfer or mortgage of real property, or of any interest therein -shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration, and without notice, unless the same be recorded according to law.” Section 2480, Gen. Stats, of 1906. The statute also provides that the Clerk of the' Circuit Court shall keep “a mortgage and • lien assignment book, in" which shall be recorded all assignments of mortgages or statutory liens presented to him for record. No assignment shalUbe entered-elsewhere' than in
An assignment of a mortgage lien is not. a “convey: anee” or a “transfer” of “any interest” in land covered by the mortgage, but is only an assignment or transfer of the lien created by the mortgage; and the recording statute as first above quoted is not applicable. When the purchaser of the land undertook to pay off the mortgage indebtedness thereon without having the note surrendered to him he thereby left the note outstanding with the mortgage as an incident thereto. The subsequent cancellation of the record of the mortgage by Wilson, the original mortgagee, was apparently unauthorized, and had no effect on the outstanding unpaid note or on the mortgage as a security for the note since the note and mortgage, though past due, were unpaid in the hands of one who for a valuable consideration took them before the jprineipal of the note was due. It appears that the interest on the nóte was paid after its assignment and even after the purchase of the property by Garrett. While the statute provides for the record by the Clerk of the Circuit Court of such assignment of mortgages as are “presented to him for record,” it does not require such a record to be made and does not subordinate such an assignment to the rights of a subsequent purchaser for value of the land who takes without notice of the assignment when it is not recorded. The assignee of the mortgage may reasonably have had the assignment recorded, but as the purchaser has not used due diligence in protecting his rights he cannot justly complain- of +he failure to record the assignment of the mortgage.' In
The decree is affirmed.