Intertype Corp. v. Pulver

132 So. 830, 101 Fla. 1176

• Court: Supreme Court of Florida
• Decided: March 17, 1931
• Status: Published

Opinions

This suit was brought by complainant, Intertype Corporation, a corporation to foreclose a purchase-money chattel mortgage. The amended bill of complaint is in the usual form of such bills for the foreclosure of ordinary mortgages under usual conditions, and alleges that the defendant Frank F. Pulver, trading and doing business under the firm name of "The Daily News," to secure the balance due complainant on the purchase price of the mortgaged property delivered to complainant the mortgage sought to be foreclosed and 50 promissory notes of $289.00 each, signed in the name of the "Daily News, (by) Major Alfred Birdsall, General Manager."

It was alleged that the mortgage was recorded; that certain of the notes were overdue and unpaid. The bill prayed for a decree of foreclosure and sale.

Defendant Frank F. Pulver, doing business as "The Daily News" and also The Daily News of St. Petersburg, Inc., by answer denied the material allegations of the bill and the authority of Major Alfred Birdsall to execute the notes and mortgage described in the bill. Decree pro confesso was entered against the defendant Major Alfred Birdsall.

At a hearing before a special master appointed to take testimony and report same to the court, the complainant introduced in evidence the original mortgage showing upon its face that it was given "to represent and secure the unpaid portion of the purchase money," and also the unpaid notes described in the mortgage.

By uncontradicted evidence in the cause, the amount due complainant was distinctly and clearly shown. Also it was shown that such indebtedness was incurred for the purchase price of the mortgaged property against which foreclosure was sought. It appears from the evidence that the defendant Frank F. Pulver paid certain of the first maturing notes described in the mortgage and had the mortgaged property in his custody and control. Defendants offered no testimony in the case.

On final hearing, the court decreed the equities of the cause to be with the defendants, but did not dismiss the bill. Thereupon complainant petitioned the court for a rehearing, which petition was denied.

Complainant appealed and assigns as error the decree finding the equities in favor of defendants and the order denying a rehearing.

The conveyance and purchase-money mortgage, being presumptively executed at the same time and forming parts of the same contract, may be considered together and regarded as forming but one instrument. Wiltsie on Mortgage Foreclosure (4th Edition) Section 199.

Incapacity of an agent to execute a purchase-money mortgage is insufficient by way of defense to the foreclosure of such mortgage, when the purchaser seeking to interpose such defense, still retains possession of the property. Wiltsie on Mortgage Foreclosure (4th Ed.) Section 199.

It is an established principle of law that when a person acts for another who accepts the fruits of his efforts, the latter is deemed to have accepted the methods employed, and he may not, even though innocent, receive the benefits and at the same time disclaim responsibility for the means by which they were acquired. Branford State Bank v. Howell Co., 88 Fla. 493, 102 So. 649; Chase v. Sullivan, 99 Fla. 202, 126 So. 359; Love v. Brown Development Co., ___ Fla. ___, 131 So. 144, and cases there cited; 21 R. C. L. 932; 1 Mechem on Agency (2nd Ed.) 316.

The rehearing should have been granted, and the final decree finding the equities to be with the defendants is reversed and this cause is remanded with directions to the court below to enter the usual decree of foreclosure in favor of the complainant for the principal amount shown to be due the complainant with interest.