62 Fla. 530 | Fla. | 1911
— Charles E. Wakeley, trustee, brought in the Circuit Court for Volusia County a bill in equity to foreclose a mortgage executed in Illinois by Frank J. Longdon and his wife upon real estate in Volusia County, Florida, to secure the payment of an accompanying note. A demurrer to the bill of complaint was overruled and the defendant filed an answer and also a cross bill. The plaintiff answered the cross bill. Eeplications were filed and testimony taken. On final hearing the cross bill was dismissed and a foreclosure decreed. The defendants appealed.
The bill of complaint alleges that the note was given by the defendants to the plaintiff for an indebtedness due the plaintiff as trustee, and alleges that to secure the payment of the indebtedness, the defendants “conveyed to your orator, as trustee, in fee simple,” the described land. Such a conveyance is under the statute a mortgage.
On demurrer, it is contended that the absence of an allegation of the delivery of the deed of trust or mortgage is fatal. The allegation that the land was “conveyed” includes delivery of .the instrument of conveyance under this bill of complaint in the absence of contradictory allegations, or statements from which an inconsistent inference may be drawn.
• The legal title to the note and mortgage being in the plaintiff, trustee, the suit- to foreclose was properly brought by the trustee, and it was not necessary to set out the beneficiaries of the trust where no reason appears for requiring the beneficiaries to be named or made parties to the suit. There was no error in overruling the demurrer to the bill of complaint.
The cross bill alleged substantially the same facts, pro; pounded interrogatories and prayed for a cancellation of the note and mortgage.
By answer to the cross bill the allegation that the defendants were not indebted to the plaintiff was denied; and it is averred that the defendants are indebted to the plaintiff as trustee; that “Frank J. Longdon knew that Charles A. Young had deposited money in the bank, which money belonged to Alice A. Young, the wife of Charles A. Young, and Mr. Frank J. Longdon proposed to Charles A.
Your orator further states that Mrs. Alice A. Young did on January 2nd, 1906, loan to Frank J. Longdon $3000.00, for which the note and trust deed aforesaid were given; that about this time Frank J. Longdon placed in the cash book of the Christian Century Company this Three Thousand Dollars ($3000.00) and that capital stock in the Christian Century Company was then issued to Frank J. Longdon in the amount of $4,500.00, he the said Frank J. Longdon, giving his notes to the Christian Century Company for $1500.00.
This defendant, your orator, further says that he denies the allegation in the cross bill saying that Frank J. Long don and Harriet E. Longdon have their home in DeLand, but alleges the fact to be that their home is not in DeLand, Florida, but was in Chicago, Illinois, on January 2nd, A. D. 1906, and this defendant denies that their absence from said County of Yolusia and State of Florida, is temporary but alleges the fact to be that they have permanently removed from Yolusia County, Florida.
This defendant fur.tb.er answering said cross bill filed herein says that when Frank J. Longdon handed the trust deed and insurance policy aforesaid to Charles A. Young, the said Charles A. Young then delivered said papers over to Charles E. Wakeley as trustee for Mrs. Alice A. Young and when Frank J. Longdon handed these papers to Charles A. Young he handed them to Charles A. Young as the agent of this defendant, Charles E. Wakeley, as trustee for Mrs. Alice A. Young, and when the said
The interrogatories propounded to Charles R. Wakeley, plaintiff in the cross bill were answered. The mortgage executed by Frank J. Longdon and his wife recites that they are “of the City of Chicago, of the County of Cook and State of Illinois” and there is other evidence from which the chancellor could have found that the homestead in Florida had been abandoned as the home.
Even if in this State two subscribing witnesses are necessary to the validity of a mortgage as a contract or statutory lien, and even if the mortgage here was not attested by two subscribing witnesses, the facts of this case establish a right to an equitable mortgage or lien if the allegations of fraud and overreaching made by the mortgagors are not shown to be true. See Margarum v. J. S. Christie Orange Co., 37 Fla. 165, 19 South. Rep. 637; Cobb v. Barr, 57 Fla. 370,........., South. Rep..........
The chancellor found the equities to be with the complainant trustee of the note and mortgage, and as there is ample evidence to sustain the finding, the decree of foreclosure should stand in the absence of errors of law shown by the record.
The decree is affirmed.