Smith v. Hope , 47 Fla. 295 ( 1904 )

Maxwell, J.

(after stating the facts). — The question presented by this appeal is whether the instrument in question, viewed in the light of the allegations of the bill, is a conditional sale or a mortgage. Upon, its face it purports to be a conditional sale; the allegations of the bill are that it is a sale, and it is sought in the bill to enforce it as such. An essential feature to a mortgage is the existence of an indebtedness, payment of which it is designed to secure. There is no suggestion in either the bill of complainant or the instrument in question that any indebtedness, either already incurred or then created, existed on the part of the defendants to secure which this instrument was given. ‘No reference is made to the payment of interest, a usual thing if the intention is to create and secure a debt, nor is there anything to indicate that the intention of the parties was not what from the face of the instrument it would appear to have been. Neither party may have desired‘to make a mortgage. The makers of the instrument may have been unwilling to assume a personal liability to the other party with a resulting risk of having to make good the deficit if from death, decline in values, low prices at forced sale or other cause the cattle conveyed should not prove sufficient to satisfy the debt; and the other parties may have been unwilling to risk the delays and expense of a foreclosure suit. So far as appears this was the case. When a conditional sale is intended, the intention will be given effect. McGriff v. Porter, 5 Fla. 373; Hollingsworth, Handcock, 7 Fla. 338; Franklin v. Ayer, 22 Fla. 654.

The fact that the condition which shall defeat the conveyance is that the grantors shall “pay” money to the other parties does not imply an existing indebtedness and an obligation to pay whether they so elect or not. A payment is not necessarily in discharge of a previous obligation, but may be the delivery of money as an equivalent or recompense for some present benefit, the procurement of which is optional with the payer. Thus, one “pays” cash for goods which he purchases, or in consideration of a release which he procures. So, here, the payment, optional with the grantor, when made is the recompense or equivalent which he pays for the resulting benefit obtained by the forfeiture of the conditional conveyance.

This question is disposed of by the decisions of this court above cited. In the two latter cases the condition in the instrument was that the grantor should “pay” money as in this case. In Hollingsworth v. Handcock the court held the instrument to be a conditional sale, saying “there seems to have been no previous negotiations between the parties, nor any loan or debt due, or mortgage spoken of to secure a previous debt.” And in that case the condition was the payment of a certain sum of money and interest thereon, which contains an intimation, of indebtedness not present in the instant case. In the case of Franklin v. Ayer, the court, while holding the instrument there involved to be shown by the evidence in the case to be a mortgage, says: “Viewing the transaction upon the papers alone, and in the absence of evidence alluded to, we think it might be doubtful whether the parties intended to make a mortgage or a conditional sale. The papers alone would clearly import a conditional sale if it were not that the paper called in the record a bond for title recites that there was an existing debt evidenced by a promissory note for the amount advanced by F. tO' A.” In the case at bar, as we have seen, there is .no evidence and no averment in the bill to vary the natural import of the language of the instrument.

Such an instrument may, of course, be executed under such circumstances and with such intention as to constitute it, under section Í981 of the Revised Statutes, a mortgage, rather than a conditional sale. Where such circumstances do not appear from the bill, however, the point can not be ■raised by demurrer, but the facts must be set up by plea or answer.

The other grounds of demurrer have not been argued before us, nor have they been considered by the lower court from the standpoint from which it must now view them, and we, therefore, reserve any discussion of them.

The order of the court below .sustaining the fourth ground of the demurrer to the bill is reversed and the cause remanded.

Carter, P. J., and Cockrell, J., concur.

Taylor, C. J., and Shackleford, J., dissent.

Hocker, J., being disqualified, took no part in the con- ' sideration of this opinion.