9 Fla. 60 | Fla. | 1860
delivered tbe opinion of tbe Court.
The bill in this ease was filed by tbe appellees, as executors of tbe last will and testament of Charles Trinder, deceased, against tbe appellant and divers other individuals, and sought tbe foreclosure of a deed of mortgage, alleged to have been given by one George L. Middlebrook in bis life time, but then deceased, to secure tbe payment of a debt due by note from tbe said Middlebrook to the said Trinder, tbe testator of tbe said appellees.
Tbe material allegations of tbe bill are, that Middlebrook, on or about tbe 18th day of June, 1838, made bis promissory note in writing, and thereby promised to pay to Trinder or order, sixty days after tbe date thereof, five thousand dollars, at tbe North Kiver Bank, in tbe city of New York,
The appellant, Loubat, is the only one of the defendants who has answered or who makes any resistance to the foreclosure, except the minor children of Middlebrook, who are represented by a guardian ad litem, and have submitted their rights and interests to the protection of the Chancellor. The answer of Loubat sets up three distinct grounds of defence, as follows, viz: First, that the demand is stale: second, that the demand was not presented to the administrator of Middlebrook within the two years jnescribed by the statute; and, third, that he is a Iona fide purchaser for a valuable consi deration, and without notice, of the mortgaged premises from one who held as a purchaser under the lien of an attachment,, which was levied prior to the date of the registration of the deed of mortgage. The answer also insists upon strict proof of the execution of the note and also of the execution and delivery of the deed of mortgage.
The record discloses the further fact that the deed of mortgage bears date as of the 7th day of March, A. H. 1840, about two months prior to the levy of the writ of attachment, but that it was not admitted to record until the 7th day of October, or about five months after the levy had been made and duly entered upon the writ.
From the view which we have taken of the facts of this case, and of the law bearing thereon, it becomes unnecessary to notice the two first grounds of the defence set up by the defendant Loubat in his answer to the bill of the appellees, viz: the staleness of the demand and its non-presentation to the administrator within the two years prescribed by
The deed of mortgage seems to have been prepared with much care and contains all the formal requisites necessary to pass to the mortgagee whatever interest the mortgagor should be found to have had in the mortgaged premises. It is settled, nevertheless, that however perfect the deed may have been in its formal parts, yet it did not begin to operate until it had been fully executed by a delwery, actual or constructive. Hence the necessity of adverting to the evidence to ascertain that date. The only evidence on the point is to be found in the deposition -of E. J. Floyd, Esq., the attorney who prepared the deed, and who was also a subscribing witness to the execution of the same. In his answer to- the third direct interrogatory he says: “ The deed was left, after its execution, in my possession, or placed there by George L. Middlebrook. It remained there from its execution until about the Ith of October. I finally forwarded it to the complainants, by mail, on the 8th day of October, 1840, by direction of Middlebrook or the complainants, I do not recollect which.” In his answer to the 5th direct interrogatory, he says: “When he executed the mortgage, Middlebrook said he did it to secure the money to his wife. If he succeeded in compromising with his creditors, he did not wish it recorded; if he did not succeed, he would write to me and wished it recorded. He said he intended this to operate as-a good and valid mortgage from its date, provided he did not settle with his creditors.” In his answer to the 6th direct interrogatory, he says: “The deed was left with me by Middlebrook, for what purpose I don’t know, except to allow him time to settle with his creditors. I was to have it recorded whenever he wrote to me. I did promise to obey
From the evidence of this witness, whose testimony was taken by the complainants in the bill, it is very evident that the deed of mortgage was not delivered at the time that it bore date, but that the instruction to chli/oer was given some time after that date, and that the actual delivery did not transpire until on the 8th day of October. At what particular date this instruction was given is also left in doubt, and, as the ascertainment of that date is of importance in determining the rights of the parties, we must approximate as near to the fact as the evidence will conduct us. In answer to the Ith direct interrogatory, which enquires with regard to the length of time that Middlebrook remained in Apalachicola after the date of the deed, the witness says: “He left some time in April or May for the North, intending to return; he did not return.” And, in answer to an interrogatory as to how long after the date of the deed he, the witness, remained in‘Apalachicola, he says: “I did not remain; I left some time in May or June, and returned in last of September or first of October.” By the aid of this evidence, we are enabled to ascertain with .tolerable precision the limit of time within which the instruction was given by Middleton to Floyd to deliver the deed; for, in his answer to the 10th direct interrogatory, he says: “I did receive instructions by mail at Apalachicola to have the mortgage recorded and forwarded to the complainants. I received
Now, it will be noticed that to constitute this instrument an escrow, it was necessary that some condition must have been stipulated to be performed by the grantees, Kipp dé Young. But was such the case? So far from this, Floyd expressly says: “I did not know Kipp & Young, and had nothing to do with them. Middlebrook left the deed with me, subject to his own orden'.” It will thus be perceived that this instrument lacked the most essential requisite of an escrow, viz: a condition to be performed by the grantees. In fact, this was but an incohoate deed, wholly inoperative-for any purpose whatsoever until Floyd had received instructions from Middlebrook to deliver it to the grantees.—
This brings us to the consideration of the second point in this connection, viz: whether any matter had supervened since the levy of the attachment, which, either in law or in fact, had destroyed the lien of the attachment?
It was insisted for the complainants that the death of Middlebrook, occurring between the date of the levy under the attachment and the rendition of final judgment against his administrator, operated a dissolution of the writ of attachment and the consequent abatement of the lien acquired by that levy, and to support that position we have been referred to the ruling in the case of Sweringen vs. Administrators of Eberins, 7 Missouri Reports, 421. That was an action of assumpsit, commenced by the levy of an attachment. After the commencement of the suit, and before the rendition of final judgment, the defendant died, and after Ms death his
The propriety of the distinction which we have made with respect to the nature of the contest will be readily perceived by adverting to the rights, duties and responsibilities of an administrator acting under our statute. The statute prescribing the order in which the debts of the estate are to be paid was clearly intended as an instruction to the administrator, and for his protection in the performance of his duties. Hnder that statute any creditor of the estate may demand the payment of his debt in the order pointed out / but if the administrator pay an inferior or postponed debt, it will hardly be seriously insisted that the creditor of the preferred class can recover the amount so paid from the party who has been thus paid. If there be any remedy against him, it certainly is not at the suit of the creditor of the preferred class; his only remedy is against the administrator and his sureties. But to demonstrate more fully the want of analogy between this case and that of a creditor pressing his right to a preference in the payment of his debt, we re
The case of Kennedy vs. Kaguet, 1 Bay, 484, and Fitch vs. Boss, 4 Serg. & Bawls, 556, cited by the counsel for the appellant, have afforded us but little light in this investigation, controlled as they were by the local statute. The very paucity of authorities brought to the attention of the Court shows that this is one of those cases which must be determined rather upon principle than precedent. We have maturely considered the positions assumed by the counsel on either side, and have been constrained to view the contest between the parties as one of title only, and viewing it in this light, the Court is of opinion that Loubat’s title, having relation back to the levy of the attachment, must prevail over the deed of mortgage, which, as has been seen, did not commence to operate until the delivery by Floyd, which delivery was at a date subsequent to the date of the levy. It is therefore ordered that the decree of the Chancellor be reversed and set aside, and the cause be remanded to the Court below, with direction to have the bill dismissed. It is further ordered that each party shall pay his own costs, as well those accruing in this Court as in the Court below.