15 Fla. 336 | Fla. | 1875
delivered the opinion of the court.
The complainant, Patterson, appeals from the decree in this case, and alleges that the court erred in adjudging that the defendant, Taylor, could claim, in this proceeding to foreclose a mortgage upon personal property, that the property is exempt and not liable to be sold under a decree, the mortgagor being the head of a family and residing in this State; the mortgage.having been given to secure the mortgagee for advances made and to be made to enable the mortgagor to make his crop, which crop of corn and cotton were a part of the property mortgaged, the mortgage having been duly recorded; and in adjudging that the defendant, Randall, was entitled, notwithstanding the mortgage, to a large quantity of corn covered by the mortgage, which' was delivered to him by the mortgagor in payment for certain corn loaned by him to the mortgagor and on account of rent of the plantation, the landlord having no lawful lien upon it by mortgage or otherwise.
These questions are presented upon this record:
Is it competent for the mortgagor of personal property to set up against a bill for foreclosure that the property mort
There is no question that the owner of personal property may sell it for money, or to pay a debt, or dispose of his title to it in any other manner, provided the sale'be not made under any “ process of law.” Having this right to control and dispose of his property, has he the power lawfully to subject it to sale, by any process of law, by consenting thereto ? and, in such case, is such sale a “forced sale ?”
In the Court of Appeals of “New York, Mr. Justice Denio, delivering the opinion in Knettle vs. Newcomb, (22 N. Y., 249,) it is held that a promissory note, having annexed to it a stipulation “ waiving and relinquishing all right of exemption of-any property I may have from execution on this debt,” is void, because it is against the policy of the law exempting property from sale on execution, which law is designed for the protection of poor men and their families against the consequences of over-confidence on the part of the debtor and over-reaching on the part of the creditor, and because it would in effect give to an execution a greater power than is given to it by the law, and thus control the effect of the process. This has been the almost universal current of the decisions of the courts in this country with reference to such contracts; yet, says the court in that case, “one may turn out his last cow on execution, or may release an equity of redemption, and he will be bound by the .act.”
In Texas the law, like ours, exempts certain property from “forced sale” upon process of law; and the courts of that State have uniformly held that a sale by virtue of any judgment or decree, founded upon a mortgage of the property, is a forced sale within the meaning of the exemption laws and of their constitution, and is therefore prohibited.
The language of our Constitution, in respect to the exemption of real and personal property, is, that it “ shall be exempted from forced sale under any process of law,” but, in reference'to real estate, it “shall not be alienable without the joint consent of husband- and wife, when that relation exists.” Of course this condition, the consent of the wife, is not required in the sale or other alienation of personal property.
It is held in Texas that any sale by means of the process of a court is a forced sale. The courts of that State agree that the exemption laws are designed to protect the man and his family in the enjoyment of the property necessary to their comfort, and against privation and poverty; and yet they hold that if a mortgage contains a power authorizing the mortgagee to sell and convey the homestead without the aid of the process of a court, it may be enforced and the law is satisfied. The prohibition, is that the mortgagee shall not have the aid of a court to enforce the contract. This is according to the letter of the law as they construe it, and the result is that the humane provisions of their exemption laws are rendered null by the simple device of foreclosing a mortgage by means of a power of sale contained in the mortgage.
There is nothing in our Constitution to prohibit the Legislature from changing the law relating to foreclosing mortgages hereafter executed, so as to authorize the mortgagee,
If the framers of the Constitution had designed to prohibit all judicial sales, even by the consfent and procurement of the .owners, it would have been a very easy thing to have so declared, as was done in a neighboring State.
In the Constitution of Georgia it is provided that each head of a family “ shall be entitled to a homestead of realty to the value of two thousand dollars in specie, and personal property to the value of one thousand dollars in specie, both to be valued at the time they are set apart; and no court or ministerial officer in this State shall ever have jurisdio^ tion or authority to enforce any judgment, decree, or execution against said proj>erty so Set apart,” including improvements, except for taxes, for purchase money, &c.
This is sufficiently clear and explicit. In Florida it is provided that certain real and personal property “shall be exempted from forced sale under .any process of law,” and thus not prohibiting all sales, but only “forced sales,” in this State. It is further provided that the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists, and therefore this property may be alienable with the joint consent of husband and wife ; and we may hence conclude that the words “ forced sale” and alienable by “consent,” are to be construed with reference to their bearing upon each other and upon the subject matter, and that the property may be “alienable” by any means known to the law if the consent be'obtained, and if consent be obtained, it is not a forced or involuntary alienation. 1
If, again, the framers of the Constitution had intended to
That they did not so frame the prohibition implies that they did not intend to prohibit the mortgaging of any species of property, whereby an alienation of it might ensue, the consent being the only condition required in respect to the real estate to render it “ alienable.”'
As to personal property, the same rule will prevail as to the effect of the term “ forced sale,” as in regard to .real property.
All the courts are constrained to sustain the exemption laws upon grounds of public policy and humanity. These considerations doubtless controlled in' the framing of our. Constitution. If there ever existed a people requiring protection of this character at the time of the adoption of that instrument, that people inhabited these Southern States, just emerged from a long and destructive war. Nearly all were poor — many entirely destitute — and many having only the soil of their former flourishing plantations and homes, without money, without farming implements or stock, and all practically at the mercy of creditors, whose demands probably exceeded the then cash value of the productive lands in these States. Capital had gone elsewhere, and but for the means brought from afar to aid them, our planters were utterly helpless. Under the most favorable circumstances it must take long years for these- people to recuperate and bring themselves up to a condition of comparative prosperity. Money and supplies, even food and clothing, must be had from abroad to enable them to live and cultivate their broad acres. The laboring classes were
We do not believe it was the intention of the Constitution to deprive the citizens of the common rights and privileges pertaining to property and credit, so far as to render their condition abject and hopeless in their poverty, beyond its express provisions, and the evident intention must control our construction of its language without doing violence to it. Motives of public policy and humanity come to our aid in sustaining this conclusion. And there are considerations of policy and humanity in so construing the law as to enable all people to demand the specific execution of their
We are of opinion that .Taylor, having executed a mort-. gage in due form of law upon the crop of cotton and corn and the other personal property named, which he might lawfully do, and having received the stipulated .considera-. tion, cannot now select this property as exempt, and thus. avoid and defeat his solemn covenant. To allow this in the.present case would be certainly inequitable. Taylor, with
II. "We proceed to examine the pleadings and evidence to ascertain whether the court erred, as alleged, in deciding .that the complainant has no rights as against the defendant IR-andall to the corn delivered to him by Taylor in payment ..-of so much corn borrowed of him by Taylor, and on account . -of Randall’s claim for rent. If the corn was exempt from , .sale to satisfy the mortgage upon it, there would be no ne- . cessity of further inquiry; but as we do not find that it was .exempt from the mortgage lien, we must dispose of the . other branch of the case.
The facts, as understood from the record, are that Taylor was a tenant occupying the land of Randall for the year 1873 ; that Randall was to receive for the rent of the plantation twenty-one bags of cotton, to be delivered out of the first cotton ginned and packed; and Randall agreed to furnish to Taylor such farming utensils as he had, six mules and six hundred bushels of corn, and at the end of the year Taylor was to return the plantation, farming utensils -and mules ,; .also, .as soon as the crop should be made, to return tthe six 'hundred bushels of corn and a certain amount of iSsdder. This agreement was in writing, but not recorded.
Patterson testifies that Randall first applied to him to know whether he would furnish Taylor with supplies to run the plantation. That Patterson refused, because Randall was to receive the first twenty-one bales of cotton. After-
R. M. Witherspoon testified that Patterson and Taylor both requested him to draw up the mortgage. When it was read to Taylor he remarked that he had borrowed six
W. N. Taylor, sworn, says — When Witherspoon called him in to sign the mortgage complainant was present, and on reading the mortgage, witness told W. to stop ; he had borrowed six hundred bushels of corn from Eandall that had to be paid back out of that crop; that Patterson did not look at witness, nor make any reply ; would not have signed the mortgage if he had known it would have deprived Eandall of the corn. Witness turned over to Eandall about six hundred bushels of the corn ; did not notify Patterson that he had done this, as he did not think it necessary, but casually remarked one day, in a conversation with P., that he had turned it over to Eandall, to which Patterson made no objection. • Afterwards Eandall wanted the corn delivered formally in the presence of witnessess, which witness did. Patterson was informed by witness about the contract with Eandall before the mortgage was signed.
Theodore Eandall, sworn — Informed Mr. Patterson of the terms of his contract long before the mortgage was executed. Witness has never waived.his right to the six hundred bushels of corn. Stated to P. that he was willing Taylor should give him a mortgage on all the corn except the six hundred bushels. There was conversation afterwards about dividing the corn raised in excess of the six hundred bushels, and seventy-five bushels each were delivered to witness and Patterson. Witness never alluded to the six hundred bushels in telling Mr. P. that he thought he would be secure, if witness told him so. Patterson insisted that the six hundred
This is a brief synopsis of the testimony which is deemed to bear upon the controversy.
Bandall, it seems, had a contract, embraced in the body of the lease, that six hundred bushels of corn should be furnished by him to Taylor, and that Taylor should return the like quantity out of the crop to be raised. The lease was not recorded, nor did Bandall take any other security for the corn furnished.
Chapter 1498, Laws of 1865-6, entitled “ an act for the relief of landlords,” provides that on failure to pay rent under a written lease, the landlord may obtain a warrant of distress against the goods and chattels of the tenant, and such writ shall be a lien on all the crops grown on the land during the year. This applies to the rent only, not to supplies furnished.
Chapter 1739, Laws of 1870, provides that any person who shall procure a loan or advance of money or goods, to aid him in the business of planting, farming, etc., may give a lien superior to all other incumbrances, excepting for labor, provided the borrower shall give an instrument in writing consenting to such lien, which shall be recorded in the records of the Circuit Court of the county, etc.; and all conflicting laws are repealed.
Mr. Bandall, having failed to put on record any evidence of his lien, if he had a lien, had no right to take the corn or crop in satisfaction of his loan, as against the mortgagee, Mr. Patterson, whose mortgage was duly recorded and covered the whole crop. It can make no difference with the legal rights of the parties that there was an understanding at the time of the execution of the mortgage contrary to the effect of the instrument itself. There was a bare agreement between Bandall and Taylor that the six hundred bushels of corn should be returned, and undoubtedly Patterson knew of it. The indebtedness of Taylor to Bandall
Upon well settled principles, no agreement or understanding anterior to the making of the mortgage can vary the express terms of the contract. There is no ambiguity in the terms of the mortgage. Mr. Patterson, then, by the effect of the mortgage, had a lien upon and a lawful right to subject the entire mortgaged property to the payment of the indebtedness secured by the mortgage. Ean.dall might have had his security, but failed to comply with the stat- . ute, and thus subordinated his claim to that of the more vigilant creditor. There is no fraud or mistake in the mortgage which authorizes the court to set it aside or vary its effect. ,
Did Patterson say, or do, or agree to anything, after his mortgage was obtained, which authorized the other parties to so dispose of the mortgaged property as to affect his lien upon it? We do not find that he did. ITe seems to have felt secure until it was found that the crop was not sufficient
Upon the whole evidence, it does not appear.that Patterson released any portion of the mortgaged property, unless it be in reference to the division of the cotton, and he is therefore entitled to the relief demanded by his bill.
The decree of the Circuit Court is reversed and set aside, and the cause remanded, with directions that further proceedings may be had in conformity with this opinion, and according to the law and equity of the case, and the practice of the court.