34 Fla. 509 | Fla. | 1894
Lead Opinion
Henry Seedhouse and Helen Seedhouse, his wife, the appellants, on March 29, 1890, filed their bill in equity for the foreclosure of a mortgage in the Circuit Court of Duval county against H. B. Broward as sheriff and ex officio administrator of the estate of Mary Dagenhart, deceased, Frederick W. Dagenhart and Abram Campbell.
To the bill as originally framed and filed the defendants F. W. Dagenhart and Abram Campbell interposed
The original mortgage is attached to the bill as part thereof, and in this mortgage the lot of land therein included is partly described and referred to as “being - the same piece of land conveyed by deed to Mary Dagenhart dated January 14th, 1885, recorded in Book H, pages 62 to 65.” The mortgage conveys the lot de- ■ scribed, “together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining.” The mortgage contains further an express covenant that the mortgagors are ■ lawfully seized of the premises thereby conveyed in.
To the bill as amended the defendants F. W. Dagenhart and Abram Campbell again interposed their several demurrers, each of them demurring thereto upon the same grounds, as follows: 1st. Because said amended bill alleges that the real estate alleged to have been mortgaged, and sought to be charged, is the separate estate of the said Mary Dagenhart, but said bill does not disclose in whom the legal title is vested for her benefit, nor is the said trustee made a party defendant to said bill. 2nd. Because said amended bill shows that said alleged promissory note is in the alternative, to pay Henry Seedhouse or Helen Seed-house, his wife, and is on that account void for uncertainty. 3rd. Because the mortgage deed annexed to and'made part of said bill creates an uncertainty as to who is the grantee intended, and is on that account void as to both Henry Seedhouse and Helen Seedhouse, his wife. 4th. That the court can not render the decree for the sale of the said property as prayed for, for that it is shown by the said bill to be the separate
The defendant Abram Campbell along with his demurrer to the amended bill also filed his several plea-to the bill, in which it is alleged that the engine, boiler and other machinery was purchased and placed upon the premises in question some time after the said mortgage had been executed by the Dagenharts, and that it did not thereby become a part of the said realty and part of the security for the repayment of said sum of money, and that when he purchased, same from the defendant F. W. Dagenhart it was not subject to said' mortgage lien. On the last of September, 1890, the demurrer of Abram Campbell to the amended bill was sustained by the court; and on the 29th of November, 1890, the demurrer of F. W. Dagenhart to said-amended bill was also sustained, and in the order of the Court sustaining same it is further ordered as follows:; ‘ ‘And the demurrer interposed by Abram Campbell on the same day having been heretofore sustained, it is-ordered that the bill filed herein be dismissed as to-these defendants.” On the same day, and in open court, as is recited in the record, the complainant entered their appeal from the last mentioned orders to this court.
Before dealing with the questions presented by the-rulings upon the demurrers,, we "will notice an irregularity that appears in the service of the subpoena in the cause. The return- of service,, endorsed on such subpoena, shows that said subpoena was served upon the defendants N.. B.. Broward and Abram Campbell by N. B. Broward as sheriff' of Duval county, by one-J. A. Yinzant as Broward’s deputy.. The maxim, qui' fácil per alitr/ni fácil per s-eT applies- in all its force to the official acts of deputy sheriffs. They act officially for-
(< In Circuit Court, Fourth Judicial
Circuit of Florida, Duval County,.
In Chancery.
Henry Seedhouse and Helen Seedhouse vs. Frederick W. Dagenhart, Abram Campbell et al.
The clerk of said court will please enter defendants.” appearance in foregoing suit.
Tours truly,
T. A & B. B. MacDohelx,^
Defendants’ Solrs.”
As to the first ground of the demurrer to the bill as ■amended we find that there is a loose general allegation in the bill that the real estate covered by the mortgage is the “separateestate ” of Mary Dagenhart, but it is evident from other parts of the bill, and especially from the mortgage, made a part thereof, that this allegation was the result of inadvertence on the part of the draughtsman of the bill, who, evidently, at -the time, was unmindful of the technical distinction established in this State between the generic terms “separate estate” and “separate statutory property,” as applied to the property of married women. The wife’s separate estate being an equitable estate where the legal title is vested in some other person as trustee for her benefit, her separate property, or separate statutory property, being all property the legal title to which is vested in her individually for her own use and benefit. Dollner, Potter & Co. vs. Snow, 16 Fla., 86; Harwood vs. Root, 20 Fla., 940. The bill in describing the mortgaged land describes it ¡as ‘‘being the same piece of land conveyed by deed to
There is no merit in the second and third grounds of the demurrer to the amended bill predicated upon the • fact that the mortgage and note secured thereby are made payable in the alternative, to Henry Seedhouse- or Helen Seedhouse, his wife. This court has repeatédly held that a mortgage under our statutes does not divest the mortgagor of the legal title, nor vest it in the mortgagee, but that it creates only a specific lien upon the property covered thereby; and, in effect, that a mortgage, of itself, is not a conveyance of the property, but a contract between the mortgagor and the-mortgagee whereby the former grants to the latter a. specific lien upon his property. McMahon vs. Russell, 17 Fla., 698; Berlack vs. Halle, 22 Fla., 236; Roan vs. Holmes, 32 Fla., 295, 13 South., 339. Viewed as a contract, requiring the interposition of judicial action to-
We think the allegations of the bill to the effect that the engine, boiler and machinery mentioned were put - upon the land mortgaged and became an appurtenant thereto as part of the realty and became fixtures thereon, and part of the security for the complainants’ claim, are sufficient to put the defendants to their answer to meet it. If their annexation to the land wras made under such circumstances as to stamp them with the attributes of fixtures, it makes no difference that they were placed upon the land subsequently to the execution of the mortgage, as between the mortgagor and mortgagee and persons with notice, they became subject to the lien of the mortgage without any special mention of them being made in the mortgage. 8 Am. & Eng. Ency. of Law, p. 50 et seq. and citations; 1 Jones on Mortgages (4th ed.), 428 et seq. and citations.
The court below erred in sustaining the demurrers to the amended bill, and in dismissing the bill as to the demurrants; said demurrers should have been overruled and the demurring defendants required to answer.
No citation upon the appeal taken appears to have been served upon the defendant Broward as administrator; the record, however, shows that the appeal was taken in open court, during a regular term, and upon the same day when the order appealed from was pronounced. Under these circumstances no citation was necessary to bring him or any of the defendants before this court upon the appeal. Sec. 6, p. 841 McClellan’s Digest.
The orders appealed from are reversed with directions to overrule the demurrers interposed by the defendants Campbell and Dagenhart, and for such further proceedings as shall be proper in the premises.
Dissenting Opinion
dissenting:
I find myself unable to agree with the majority of' the court in the conclusion reached in this case. I think that instead of reversing the decree of the court below, we should have dismissed the appeal for reasons hereinafter stated. It is conceded in the opinion of the court that the service upon Broward, ex officio
“Henry Seedhouse and Helen Seedhouse vs. Frederick W. Dagenhart, Abram Campbell et at.
The clerk of said court will please enter defendants’ . appearance in foregoing suit.
Yours truly,
T. A. & B. B. MacDonell,
Defendants’ Solrs.”
In this appearance the names of all the parties, both complainants and defendants, are given, except that -of the defendant Broward as administrator. The names are not even abbreviated by initials, but are stated deliberately and fully. From this circumstance and from other matters hereinafter stated, I do not think that Messrs. T. A. & B. B. MacDonell intended •to appear for Broward as administrator. I think there was a purpose in leaving his name, which, according to the title of the cause, should have appeared first, out of this entry of appearance. I grant that this entry of appearance is somewhat indefinite. The writing of the abbreviations iiet at” after the names of the other defendants raised some presumption that the solicitors named intended to appear for Broward. This slight presumption is overwhelmed by all the other facts and circumstances of the case — to such an extent that ! am forced to the opinion that the appear
The clerk in making up the record in this case recites that the defendants appeared by filing the appearance hereinbefore quoted. This recital is of no binding force or effect as showing the appearance of the defendants. Such entries of appearance, although general in their terms, are confined to the defendants-who have been served with subpoena. Dean vs. McKinstry, 2 Smedes & M., 213; Miller vs. Ewing, 8 Smedes & M., 421; Edwards vs. Toomer, 14 Smedes & M., 75; Torrey vs. Jordan & Smith, 4 How., (Miss.), 401; Chester vs. Miller, 13 Cal., 558.
It is my opinion that the record does not show that Broward as administrator was before the Circuit Court at all. That he was, therefore, not such a party as was-bound by the taking of an appeal in open court. He has not been served with citation upon appeal, and is not before this court. I am of the opinion that this-
As this court can not determine the questions in•volved in a consideration of the rulings of the court ■appealed from without determining the liability of Broward as administrator, and the validity of the mortgage sought to be enforced against the estate of his intestate, as said party was not before the court •below, nor before this court, I think this court has no jurisdiction of the person sufficient to determine the • questions involved, and the appeal should be dismissed.