68 Fla. 451 | Fla. | 1914
It appears that on May 8, 1910, the owner of land, executed a mortgage thereon to secure the payment of a negotiable promissory note made by the mortgagor payable in one year to the order of Leslie E. Brooks Company, a corporation, the mortgagee. The mortgage was duly recorded on May 3, 1910, and on the same day the note and mortgage were assigned to Mrs. H. S. Northup. On November 3, 1911, the Leslie E. Brooks Company took another mortgage on the same property from subsequent owners of the land to secure the payment of a negotiable promissory note payable in one year. On January 24, 1912, the mortgage first above mentioned was without authority cancelled on the record by the Leslie E. Brooks Company, the original mortgagee, the note and mortgage being held for value by the assignee, Mrs. H. S. Northup, who did not authorize and did not know of the cancellation of the mortgage on the record by the Leslie E. Brooks Company. On January 31, 1912, the mortgage and the note executed on November 3, 1911, were assigned to J. S. Reese, Trustee. The assignment does not state any consideration therefor. ,On June 24, 1914, J. S. Reese, Trustee, brought proceedings
At a hearing on bill and answer the chancellor decreed in favor of the assignee of the last mortgage, and the defendants H. S. Northup, the assignee of the first mortgage, and her husband, appealed.
The question presented is whether the assignee of the first mortgage or the assignee of the last mortgage has priority.
When an equity eause is heard on bill and answer, every fact stated in the bill and not denied by the averments of the answer, must be taken as true. And facts stated in the answer must be taken to be true as pleaded. Hart v. Sanderson’s Administrators, 18 Fla. 103.
The transfer of a note secured by a mortgage, carries the mortgage, for the former is the principal and the latter the incident. Stewart v. Preston, 1 Fla. 10, 44 Am. Dec. 621; Carter v. Bennett, 4 Fla. 283; 27 Cyc. 1286; Taylor v. Am. Nat. Bk., 63 Fla. 631, 57 South. Rep. 678.
The registry statutes provide for the record of such assignments of mortgages as are “presented * for record,” but do not require such a record to be made; and the statutes do not expressly subordinate such assignments when not recorded to the rights of subsequent purchasers for value who take without notice of the assignment. Garrett v. Fernauld, 63 Fla. 434, 57 South. Rep. 671.
An unauthorized cancellation of the record of a mort
The answer admits the allegation that the last note and mortgage for $1,500.00, executed on November 3, 1911, were by the payee and mortgagee, The Leslie E. Brooks Company, on January 31, 1912, endorsed and assigned to ' the complainant trustee assignee “for valuable consideration and prior to the maturity of the note.” In response to the allegations that the complainant trustee took the note and mortgage without notice or knowledge of any claim of the defendant, and that the claim of the defendant is inferior to complainant’s mortgage, the answer avers that the first negotiable note for $1,500.00 and the mortgage to secure its payment, executed on May 3, 1910, were on the same day “in consideration of the payment of $1,500.00” to the payee and mortgagee, Leslie E. Brooks Company, endorsed and assigned to H. S. Northup. The answer denies that the mortgage owned by the complainant is prior in dignity to the defendant’s mortgage, and expressly avers that the defendant’s lien, which was duly recorded and for which she paid full value on the day it was executed, is superior to that of the complainant, which the complainant alleges was assigned to him as trustee “for valuable consideration.” The issue thus made is to be determined by the efficacy of the allegations of fact contained in the bill of complaint to show that the complainant is a bona fide holder for full value of a mortgage that is in equity superior to the defendant’s lien. If on a hearing on bill and answer, the allegations of the bill, that
Priority cannot fairly be decreed to the trustee assignee of the last note and mortgage who took under the circumstances stated above, as against the assignee of the first negotiable note and duly recorded mortgage who paid full value for the assignment made the day the note and mortgage were executed.
The decree is reversed, with directions to decree the priorities in favor of the defendant, H. S. Northup.