127 Fla. 419 | Fla. | 1937
The appeal here is from final decree in foreclosure. The case was referred to a Special Master to *420 make report of findings of fact and the law. The Master's report of findings of facts was sustained by the Chancellor and there is ample evidence in the record to support the findings. Therefore, as a statement of the case we adopt the findings of facts made by the Special Master which are as follows:
"On or about June 11, 1931, Grady Tyler, a brother of the defendant, H.D. Tyler, and a brother-in-law of the defendant, Gladys B. Tyler, was found short in his accounts with the plaintiff, Hill Brothers, Inc., a Florida Corporation, by whom he was then employed as a salesman. This shortage amounted to $1210.98 and at said time the said Grady Tyler was also indebted to Hill Brothers, Inc., for money advanced and loaned by the plaintiff to him in the sum of $539.02. Grady Tyler, sometime prior to June 11, 1931, while engaged as an employee of the plaintiff had previously been found short in his accounts, which shortage had been replaced by him. Upon the occurrence of the first shortage he had been warned by Hill Brothers, Inc., that if he were ever found short in his accounts again `it would be the last time.' The first shortage was replaced by Grady Tyler through a loan of money made to him in part by one of the executives of the plaintiff. It was repaid by deducting from his salary a certain sum of money each month.
From the testimony it appears that there was at least a tacit understanding between the representative of Hill *422 Brothers, Inc., and H.D. Tyler that in the event the mortgage was executed by H.D. Tyler and his wife to Hill Brothers, Inc., in satisfaction of the indebtedness due from Grady Tyler to Hill Brothers, Inc., including both the amounts of advances and shortage, that no prosecution for embezzlement would be instituted or maintained against Grady Tyler because of the shortage.
"`Lots sixteen (16) and seventeen (17) block fifty-two (52) of Section Two (2) Miami Shores, according to plat thereof recorded in Plat Book 10, page 37, of the Public Records of Dade County, Florida.'
"Together with a promissory note in the sum of $1,750.00, made payable to Hill Brothers, Inc., and delivered the same to his brother, H.D. Tyler, at his place of business, 2020 *424 Biscayne Boulevard, Miami Florida, and this mortgage was on July 9, 1931, executed by H.D. Tyler and his wife, Gladys B. Tyler, securing the said promissory note which was also executed by the said H.D. Tyler and Gladys B. Tyler, and the same were then after due execution delivered to Grady Tyler, who in turn delivered the same to Hill Brothers, Inc., and received from them a receipt for the said mortgage and note which contained a statement that the said mortgage and note satisfied in full all claims of Hill Brothers, Inc., against Grady Tyler of every nature, character and description. At the time of the execution of said mortgage and note Gladys B. Tyler stated to the Notary Public taking her acknowledgment upon said note, that she was executing the same `to protect her children.' H.D. Tyler testified that he executed the mortgage and note because he believed it to be invalid due to the threats of prosecution made by Hill Brothers, Inc., as aforesaid, and that he further executed the mortgage for the purpose of saving his brother from criminal prosecution.
So it appears that the mortgage was given to secure a note, which note obligated the maker, H.D. Tyler, to pay to Hill Brothers, Inc., a Florida corporation, the sum of $1,750.00, with interest, which was the amount of the agreed indebtedness due from the obligor's brother, Grady Tyler, to Hill Brothers, Inc., for money advanced to him, Grady Tyler, and for money which Grady Tyler had received as agent and servant of Hill Brothers, Inc., and had wrongfully converted to his own use; that prior to the execution of the note and mortgage H.D. Tyler and Gladys B. Tyler, his wife, had had ample opportunity to consult counsel, and did consult counsel and were advised by counsel in regard to the force and effect of the execution and delivery of the note and mortgage and that after being advised by counsel they freely and voluntarily executed the note and mortgage, believing that the same could be defeated by showing that Hill Brothers, Inc., had agreed not to prosecute Grady Tyler if the shortage and other indebtedness was settled and that Hill Brothers, Inc., would accept the note and mortgage in settlement of Grady Tyler's obligation.
Appellant contends, (1) that the mortgage was procured by blackmail and was procured by acts in violation of Section 5092 R.G.S., 7194 C.G.L. That contention is not tenable because there is neither any plea nor is there evidence in the record to show that Hill Brothers, Inc., at any time maliciously threatened to accuse another of any crime or offense.
The facts in this case are entirely different from those in the case of Burton v. McMillan,
The decree appealed from should be affirmed on authority of Smith v. Commercial Bank of Jasper,
So ordered.
Affirmed.
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.