LEE tI. SIMPSON.
other,) it should be required to pay this money over at this time to the receiver of the Fidelity Bank; and I see no reasonable objection to allowing the Elkhart Bank to prove up its claim for whatever it choses to prove up. But the receiver must be allowed to accept that proof and pay the dividend on the claim presented, expressly without prejudice, as to his claim, whatever it may be, upon the proceeds of the drafts and notes collected by the Elkhart Bank. If those notes and drafts were indorsed "for collection only," the proceeds belong to the banks that furnished them; but, if the notes and drafts were so indorsed, there really seems to be very little practical importance in the question, for, if the Elkhart Bank pays them over to the receiver, he would be compelled to pay them over to the banks claiming them, and of course that would relieve the ElkElkhart Bank will be allowed to prove its claim for the hart Bank. balance, less said $1,873.97, but without prejudice to the receiver, as above indicated.
(Circuit Court, D. Soutlt Oarollna. }fay 18,1889.)
Testatrix bequeathed property in trust to her daughter for life. and provided "that my daughter Anna is hereby authorized and empowered by her last will and testament, duly executed by her, to dispose of this bequest * * * as she pleases." The daughter, in her will, recited: "Whereas, I am entitled to legacies under the last will of my deceased mother, * * * alld to a distributive share in the several estates of my deceased sister * * * and my brother," and devised "the entire property and estate to which I am now in any wise entitled, and which I may hereafter acquire, of whatever the same may consist, to my beloved husband." Held, that this was a valid exe· cution of the power.
In Equity. On final hearing. On May 13, A. D. 1854, Mrs. Floride Calhoun was seised and possessed of the plantation or tract of land situate, lying, and being in that part of Pickens district, which is now Oconee county, in the state of South Caroli'na, on the east side of Seneca river, known as the "Fort Hill Place," containing 1,110 acres, more or less; and on that day the said Floride Calhoun and her daughter, Cornelia M. Calhoun, sold and conveyed this plantation or tract of land, together with certain negro slaves and other personalty, to Andrew P. Calhoun for the sum of $49,000;. Cornelia M. Calhoun having no interest whatever in the real estate so sold and conveyed. Andrew P. Calhoun duly executed his certain bond, under seal, to Floride and Cornelia, conditioned for the payment of $40,200 to FloridEj Calhoun, and the remaining $8.200 to Cornelia M. Calhoun, and to secure the payment of the bond representing the purchase money", and as a part of the same transaction, at the same time . duly executed arid, delivered to Floride and Cornelia his certain convey. alice, byway of mortgage, and thereby granted, bargained, sold, andre-
leased the plantation or tract of laud upon the condition that i.f he should well and truly pay, or cause to be pajd, the sums of money in the said bond mentioned to be paid, according to the t,rue intent and meaning thereof, the conveyance should be null and void, otherwise to remain in full force and virtue. On the 27th day of June, A. D. 1863, Floride Calhoun duly made herlast will and testament in writing, wherein and whereby, among other things, she devised and bequeathed as follows:
"Second. To my daughter Anna Maria, wife of Thomas G. Clemson, of Maryland, I give, devise, and bequpath during her life, and for her sale and separate use, the folloWing property: My house and lot in Pendleton, and the land attached and belonging thereto, purchased by me from Mrs. William Adger, together with the furniture and everything in the house and upon the premises, reserving, however, the silver and such other articles as I may hereinafter specifically give to others; also all my jewelry, and the silver cup and prayer-book, presented to me by the church at Newport, Ebode Island. At Anna's death I devise and bequeath all the above-mentioned property to her daughter, Floride Clemson. and at the death of Floride, if she dips without issue, I devise and bequeath it to my sons .John and ·William's children, then living, equally among them; or, if they be dead, to their issue then liVing. * * *" "( 19) I am possessed still of a large residue of property, consisting principally of a debt due me by my son Andrew, for the purchase of Fort Hill, amounting to about forty thousand two hundred dollars, secured to me by bond and mortgage. I have also an unsecured interest in a gold mine in Dahlonega, Georgia, belonging to the estate of my late husband, and also an interest in the estate of my second son, Patrick, and second daughter, Cornelia, besides other property. ·Whatever nal or personal property I lIlay possess at my deHth, and not hereinbefore specitlcally or otherwise disposed of, I direct my executors to sell whenever they shall deem it ad visable. I llirect my executors to collect, as fast as possible, the above-mentioned residue of my estate, and, after paying off my debts and the legacy to Calhoun Clemson, the remainder I wish divided into fonr parts, which I dispose of as follows: (20) One part, being the fourth of the above residue, I give and bequeath to my daughter Anna during her life, and for her sale and separate use, and at her death I will and bequeath it to her danghter, Floride, and at Floride's death, if she die without issue, I will and bequeath it to the children of my deceased sons John and 'Villi am, then living, equally among them, or to their issue, if they he dead, issue to represent the parents. The better to effect my intentions in regard to to the property in this and in the second clause, given to Anna, I appoint Edward Noble, of Abbeville, trnstee for it, and vest in him the legal title. Should Anna at any time wish to sell the house and lands in Pendleton, or all or any portion of the property given to her for life, the trustee, prOVided it meets with his approval, is authorized to dispose of it according to the wishes of my daughter. upon having her written request for so doing. 'fhe proceeds of such sale the trustee shall hold subject to the trusts and limitations declared in reference to the original property. The trustee is authorized and requireLi to invest the proceeds, and also the fourth part of the residue herein given to her, in such property or in such way as she lllay in writing direct, provided it meets with his approval.'rhe trustee is authorized and required from time to time to change such investments as often as he may be directed so to do by my said daughter in writing, provided it meets with his approval, holding al ways the substituted property or reinvestments subject to the trusts and limitations aforesaid. If from death or any cause there is no trustee. or if Anna shall at any time shall desire to change her trustee, she shall have the power so to do, and to appoint another by any instiu-
LEE V. SIMPSON.
ment in writing, under seal, executed by her in the presence of two subscribing witnesses; and as often as she may desire to change her trustee she shall have the power so to do by observing the form and solemnity above described. (21) One-fourth part of said residue of my said estate I give and bequeath to my granddaughter, Floride Clemson; but if Floride should die without living issue. I give and bequeath it at her death to the children of my sons John aud ·William, aI' the issue of them if they be dead. the issue to take by representation. (22) The remaining two-fourths I dispose of as follows: To Kate P. Calhoun. my daughter-in-law, I give and bequeath the one-half of the one· fourth of said residue of my estate, to be enjoyed by her during widowhood. At her death or marriage, whichever first happens. I give and bequeath the same to such of her children, being my grandchildren, as may then be alive. But should either of my said grandchildren die under twenty-oue years of age, leaving no child or children, the share of such deceasing grandchild shall go to the sUI'l'ivors or survivor of them, or their issue, the issue representing the parent. If Kate should die before me. what I have given her in the will is not to revert to my estate, but is to go to her children, my grandchildren, living at my death. subject to the conditions and limitations above expressed. (23) The remaining fourth and half of a fourth of the above-said residue of my estate I give and bequeath to my grandsons. John C. Calhoun and Benjamin A. P. Calhoun, sons of my deceased sons John and ·William Lowndes Calhoun, child of my second son, William, equally among them; and, should either of them die under twenty-one years of age, leaving no issue, the share of such deceased child shall go to the survi Val' or survi vol's. " On the 22d day of January, A. D. 1866, Floride Calhoun duly made, published, and declared a codicil to her last will and testament, wherein, among other things, she revoked the devise of the real property in Pendleton, made to Anna Clemson, in the second paragraph of her last will and testament, and devised the same to other persons, and provided as follows: "(2) By the nineteenth clause of the will I direct the said bond debt on my deceased son Andrew, secured by mortgage on }'ort Hill, together with all other property possessed uy me, and not before disposed of. to be collected by my executors, and the proceeds to be divided into four parts. One part I gave to Anna, one part to her daughter, Floride. and the other two parts to Kate and her children, as will appear by clauses 20, 21, 22, aud 23 of the will. I desire now to change the dispOSition of the said bond and mortgage debt, and do now give and bequeath it in the following manner: Three-fourths of my interest in said bond aud mortgage debt, amounting to about forty thousand two hundred dollars, Thereby give and bequeath to my daughter Anna M. Clemson, to ve enjoyed by her under clause twenty of the will, and according to the provisions of that clause to vest in the same trustee, and to be SUbject to all the powers, trusts, conditions, and limitations of that clause precisely as the bequests therein made were SUbject to them, with this exception and alteration: that my daughter Anna is hereby autlJOrized and empowered by her last will and testament. duly executed by her, to dispose of this beq uest of three-fourths of said uond and mortgage debt as she pleases. Hshe does not thus dispose of it at her death, I give and bequeath it, the said three-fourths, to her daughter, Florida, and, should the said Floride die without leaving issue. I give and bequeath it at her death to her brother. Calhoun Clemson; but, nevertheless, Floride shall likewise have power to dispose of it at her death as she pleases, by a last will and testament duly executed by her. By clause 2d of the will I gave the furniture and every article of the property in my house inPendleton, and upon the premises, witu certain rese!'vations, and also my jewel!',}'
and some other small articles. to my said daughter Anna.· I now confirm to her the bequests of aforesaid furniture, and all other personal property embraced in said 2d clause, which it is my will that she shall enjoy for life, as her Bole and separate estate, and at her dellth I give and bequeath lIll this personal property to her daughter, Floride, absolutely. To Anna I also give and bequeath the oil portrait of my mother, which by clause 5th of my willI gave to my daughter-in-law Kate. (3) The remaining one-fourth part of my interest in said bond and mortgage debt against the estate of my deceased son Andrew I give and bequeath to Floride E. Clemson, my granddaughter; hut if she dilli!. without leaving issue I give and bequeath it to her brother, John Calhonn Clemson. She, nevertheless, is hereby authorized and empowered to dispose of said fourth part as she pleases by her last will and testament dnly executed. * * * (4) Should my granddaughter Floride'sdeath occur before mine. what I have given her in the will and codicil sh:lllnot fall into the residue of my estate, but I give and bequeath it to her mother. my daughter Anna, who shall take it subject to all the trusts, powers, and limitations imposed upon the direct bequest to her; and, should my daughter Anna's death occur before niine, what I have given her in the several clauses of tlle will and codicil shall not fall into the residue of my estate, but I gi ve and heqlleath the same to her daughter, Floride, who shall take and enjoy it as her mother would have done if SUbject to the same trusts, powers, limitations, and conditions; and should both Anna and Floride (lie before me, what has been given them in the several clauses of the will and codicil shall not fall into said residue. but I give and bequeath the whole to my grandson, John Calhoun Clemson. (5) Should I lit any time collect the aforesaid bond and mortgage debt; or any part of it, or should Fort Hill he pllrchased with it, or the money be invested in any other property, or be retained in hand, the property thus purchased, the property thus obtained by investment, and the money thus retained, shall be consiiered and hl'ld to be in place of and the sClme liS the aforesliid bond and mortgage, and shall pass under this codicil as if the same that is to say, shall pass to were still in the form of said bond and my Anna and granddaughter Floride, as aforesaid bond and mortgage debt is directed to be divided between them." On the 12th day of March. A. D. 1866, Floride Calhoun and Thomas G. Clemson, to whom letters of administration had been granted in February, A. D. 1866, on the personal estate of Cornelia M. Calhoun, who had departed this life intestate, and unmarried, in that year, as administrator of the personal estate of said Cornelia, exhibited their bill in the court of equity for the district of Pickens, state of South Carolina, against Andrew P Calhoun and others, for the foreclosure of the mortgage of the plantation or tract of land knows as the" Fort Hill Place," executed to secure payment of the bond aforesaid, and for the sale of the plantation for that purpose, and at the July term, A. D. 1866, of the court a decree was made whereby it was adjudged that the mortgage be foreclosed and the mortgage realty sold, which decree, on appeal, was affirmed by the supreme court. of the state of South C'arolina, and the cause remanded to the circuit court for further proceeding!:! in accordance therewith. During the pendency of that suit, to-wit, on the 25th day of July, A. D. 1866, Floride Calhoun departed this life, leaving in full force her last will and testament, as modified by the codicil aforesaid, and thereafter, on the 7th day of August, A. D. 1866, the said last will and testamentalld codicil were duly admitted to probate, and Edward Noble, one of the per-
LEE tl. SIMPSON.
sons mentioned as executors therein, duly qualified as such on the same day. In August, 1869, Floride E. Clem80n intermarried with Gideon Lee,. of the .st&teof New, Yorl-" , and coniplainant, Isabella Lee, is the only child of the marriage, and' on the 27th day of August, A. D. 1871, the said Floride E. Lee, formerly Clemson, died intestate, leaving surviving ber, as her sole heirs at law and distributees, her husband, Gideon Lee, and her daughter, Isabella Lee. On the 29th day of September, A. D. 1871, AlUla C. Clemson made her last will and testament, as follows: "In the name of God, amen. Whereas, I am entitled to legacies under the last will of my deceased mother, Floride Calhoun, and to a llistributive share in th" several estates of my deceased sister, Cornelia Calhoun, and my brother, Patrick Calhoun, and, notwithstanding my coverture, have full tpstamentary power to dispose of the same: Now I, Anna Calhoun Clemson, the wife of Thomas G. Clemson, of the town of .Pendleton, in the county of Anderson. and state aforesaid, being of sound and disposing mind, memory. and understanding. do make this my last will and testament in manner following: I will, devise, and beq neath the entire property and estate to which I am now in anyWise elltitlpd, and which I may hereafter acq nire, of whatever the same may consist, ,to my beloved husband, Thomas G. Clemson. absolutely and in fee-simple; but should my husband, Thomas G. Clemson, depart this life leavme his sUl'vivor, or should he survive me and then die intestate, in either event I will. devise. and Lequeath my entire property and estate. as well as that which I may hereafter acqUire, of whatever the same may consist, tl) my granddaughter, Isabella Lpe, the child of Gideon Lee, of the state of New York, absolutely and in fee-simple. I hereby nominate and constitute Thomas G. Clemson executor of this my will." On the 13th day of December, 1871, the said Thomas G. Clemson was substituted as trustee of Anna M. Clemson, under the will of Floride Calhoun, in the place and stead of Edward by the following instrument in writing : "Whel'eas, by the will of the late Mrs. Floride Calhon.n, of Pendleton, daiied .June 27, H,63, and by the codicil thereto attached, dated 22d .January, 1866. the undersigned, Anna M. Clemson. her daughter. is entitled to considerable It>gacIes, the lel/al title of which is by the will vested in Edward Noble, Esq., of ALbeville county. in said state, as trustee. By the twentieth clause of the will, conlirmed by the second clause of the codicil. the testatrix provides for a change of trustee in the following manner, viz.: 'If from death, or any cause. there is no trustee, or if Anna at any time shall desire to change her trustee, she shall have the power so to do, and to appoint another by any instrument in writing, under seal, executed by her in the presence of two subscribing witnesses; and as often as she may desire to change her trustee she shall have the power so to do by observing the form and solemnity above described.' And wh';lreas, the said will and codicil are in the office of the probate jUdg'l for said county of Anderson, having been duly probated on, the 7th of AUg'ust, 1866, and letters testamentary granted to the said Edward Noble, as executor, on same date: Now. be it known that, in accordanoe with the power in me vested by the above-recited passage of my mother's will, I, Anna M. Clemson. of the said countyof Anderson, do herebynoroinate and appoint my husband. ThomasG. Clemson, of Pendleton, Anderson county, as trustee. un· the will. for the property therein bequeathed to me, and also for the property beqneathed me in the codicil, in the place and stead of the said Edward Noble, who desires to be relieved fl"Om the trust."
FEDERAL REPORTER,vol. 39.
Executed in the presence of two subscribing witnesses, and the acceptance of the trusteeship by Mr. Clemson appended. The proceedings for foreclosure against said,Andrew P. Calhoun duly went to decree, Noble, executor, been substituted as one of the complainants, under which the Fort Hill property was sold, and purchased by Thomas G. Clemson, January 1, 1872, and on June 10, 1875, title was made for the same in pursuance of order of court to said Thomas G. Clemson, as trustee of Anna M. Clemson, under the will of Floride Calhoun. The consideration for said purchase and conveyance appears to have been the mortgage debt of Andrew P. Calhoun, and Mr. Clemson, it is alleged, also discharged legacies and demands to the amount of $6,964.93 in the purchase and redemption of said property. On the 5th day of November, 1873, a partition in kind was made of the said Fort Hill plantation between the said Anna M. Clemson and Thomas G. Clemson. as her trustee, on the one part, and the complainant and Gideon Lee, as her guardian, on the other part, by which onefourth part thereof, amounting to 288 acres, was allotted and set off' to complainant, and the remainder, amounting to about 814 acres, was allotted and set off to said Anna M. and Thomas G. Clemson, and complainant thereupon entered into possession of said parcel so allotted to her, and has ever eince remained in possession thereof. On the 12th day of September, 1875. Anna M., otherwise known as Anna C. Clemson, died, leaving in full force, and unrevoked, her said last will and testament, bearing date September 29, 1871, which was duly admitted to probate, and from September, 1875, to the time of his death said Thomas G. Clemson remained in quiet, open, and continuous possession of said property, claiming to hold the same as his individual property in fee-simple. On April 6, 1888, Thomas G. Clemson departed this life, leaving in full force, and unrevoked, his last will and testament, bearing date the 6th day of November, A. D. 1886, together with a codicil thereto, bearing date the 26th day of March, 1887, which will and codicil were duly admitted to probate on the 20th day of April, 1888. In and by the said codicil the defendant, Simpson was named and constituted the sole executor of' the said last will and testament, and the Fort property was devised to him on certain trusts, fully set out therein, in virtue whereof said defendant entf'red into, and now remains, in possession of the said Fort Hill planwtion. The !Jill was filed November 26; 1888. asserting title in complainant to the property in question, and asking a decree to that effect, and that defendant held the legal title in trust for her, and for injunction and aecounting. J. P. Garey and Bachman &- Youmans, for complainant. Wells &- Orr and Smythe &- Lee, for defendant. Before FULLER, Chief Justice, and BOND and SIMONTON, JJ. FULLER, Chief Justice, (after stating the facts as above.) In respect to jurisdiction, we are satisfied with the conclusions reached by the district judge when this caUSA came up on demurrer, and do not consider it necessary to add anything to the views then expressed. Lee v. Simpson, 37
Fed. Rep. 12. The main question for determination is, then, whether the property passed by the will of Mrs. Clemson as in due execution of the power under the will find codicil of Mrs. Floride Calhoun. By that will and codicil three-fourths of the testatrix's interest in the bond and mortgag-e of A. P. Calhoun was bequeathed to Mrs. Clemson for her sole and separate use during her life, the legal title being vested in a trustee, to be disposed of and the proceeds invested as she might direct, but to be held upon like trust, with power in her to change her trustee as she might desire; and she was also authorized and empowered to dispose of said bequeflt by will as she pleased, whatever form it had assumed, as by purchase of the Fort Hill property, or otherwise. The rule established by the weight of English authority prior to the statutes of 7 Wm. IV., and 1 Viet. c. 26, § 27, was that a will could not be held to be the execution of a power unless it relerred to the power, or described the property subject to it, or would be inoperative if not acting upon such property; but the general rule in this country is more liberal, and the intention of the testator as the donee of the power to execute it, however manilested, whether directly or indirectly, positively or by just implication, is held to prevail, even though the will does not refer to the power, nor designate the property, and the donee has other property upon which the will may operate; so that "the question is in every case a question of the intention of the donee of the power, taking into consideration not only the terms of his will, but the circumstances surrounding him at the time of its execution, such as the source of the power, the terms of the instrument creating it, and the extent of his present or past interest in the property subject to it." GRAY, C. J., Sewall v. Wilme1', 132 Mass. 134; Warner v. Insurance Co., 109 U. S. 357, 3 Sup. Ct. Rep. 221. And a general devise or bequest may be construed as including real or personal estate, of which the testator has a general power of appointment, unless a contrary intention appears by or can be deduced from the will. Funk v. Eggleston, 92 Ill. 515; White v. Hicks, 33 N. Y. 383; Blagge v. Miles, 1 Story, 427; Andrews v. Brumfield, 32 Miss. 108. In Blake v. Hawkins, 98 U. S. 315,326, Mr. Justice STRONG, speaking for the court, said: other hand, if the will contains no expressed intent to exert the "On power, yl't, if. it may be reasonably gathered from the gifts and directions made that their purpose and object were to execnte it, the will must be regarul'd as an execution. After all, an appointment under a power is an intent to appoint, carried out, and, if made by will, the intent and its execution are to be sought for through the whole instrument." In Bilderback v. Boyce, 14 S. C. 528, the supreme court of South Carolina expresses its concurrence with thp, rule followed in the English chancery, with the modification, indicated by Mr. Justice STORY in Blagge v. Miles, supra, that if the intention to execute is, under all the circumstances, apparent and clear, so that the transaction is not fairly susceptible of any other interpretation, the execution should be sustained. By her will Mrs. Clemson declares herself "entitled to legacies under the last will of my deceased mother, Floride Calhoun," and to a v.39F.no.4-16
distrib).lti.ve. share in the estates of her siElter I'tnd.brother, and to have, my coverture, full teiltamentarypower to dispose of the same," and she then to." )Vill, devise, .and bequeath the enno.",,in anywise entitled, and tire pp;>perty and estate to whioh I which I may hereafter acquire, of whateyer the same may consist, to my beloved husband, ThomasG. Clemson, absolutely and in fee-simple." If, however, she survives him, or he, intestate, then the entir<;l property and estate is devised and bequeathed to her granddaughter, the complainant. The will is dated Septemper 29, 1871, and upon the 13th of December following Mrs. Clemson exercised the power of ,appointing a new trustee; the instrument reciting that by the will and codicil of her mother, Mrs. Floride Calhoun, she" is entitled to considerable legacies, the legal title of which is, by the will, vested in Edward Noble, Esq., of Abbeville county, in said state, as trustee," and proceeding to appoint Thomas G. Clemson "as trustee under the will for the property therein bequeathed to me, and also for the property bequeathed me in the codicil," in the place of said Noble. Clearly, the "legacies" to which Mrs. Clemson, by the instrument of appointment, stated she was" entitled," and of which she appointed her husband trustee, were the same legacies to which, by the will, she declared herself entitled, and which she thereby devised and bequeathed to him. Having the right to the enjoyment, during life, of the property so held in trust, and the absolute power of disposing of it at her death, she treated it as being as much hers as the alleged distributive share; and, even if she possessed only a power over, and not an interest in, the property, it would be altogether too narrow and technical a construction, under the circumstances, to so limit the language, "I will, devise, and bequeath the entire property and estate to which I am now in anywise entitled, and which I may hereafter acquire, of whatever the same may consist," as to exclude the exercise of the power. It is true that the mention of the distributive share allows it to be said that the instrument might have some effect by means of that interest, but this would not be all the effect the words import; and, if the intention to pass all can be discovered, it would seem that such intention ought to prevail. 2 Chance, Pow. p. 72, § 1597. The intent to diRpose of all the estate here is apparent upon the face of the will, and, as the will plainly refers to the property covered by the power. its words cannot be satisfied unless. the instrument ope1.'atesas an execution of the power. Mrs. Clemson also asserted "full testamentary power to dispose of the same," "notwithstanding my [her]coverture," and it is ably argued by counsel that this assertion was made by way of emphasizing the fact that, shortly before, married women in South Carolina had been enabled to dispose of their property by will, and that therefore the assertion tenns to sustain th,econtention that she :t:egarded herself as dealing solely "'ith .property· absolutely owned by her in her own right. But ass\lc};t statel)..1ent would, in that view, have been wholly. uncalled for, and this particular property could only be disposed of by Mrs. Clemson. by will, while she could alienate her own property in any way she chose, the more reasonable inference seems to
BRIGHT tI. BUCKMAN.
us to be that she referred to the power of disposition given by er's testament, rather than to her legal ,capacity. In short, we think that, in addition to the reference to the property which was the subject of the power, there is reference to the power itself, and upon the whole· case we can entertain no doubt that it was the intention of Mrs. Clemson to dispose of the property in question by her last will and testament, and that this intention was carried out in due execution of the power. The result, therefore, is that the bill must be dismissed, and it iJ so dered.
April 15, 1889.)'
«(!ircuit Court, N. D. Florida.
l\-IORTGAGES-LIEN-NOTICE OF PRIOR GRANTEES.
At th e time of the execution of a mortgage persons were in possession of several of the parcels of the land mortgaged. claiming under contracts of purchase from the mortgagor, and had paid part of the purchase money. Some had huilt fences around their lots, and were cultivating them. Others had built hOllses on theirs, and were living in them. Held, that their possession was sufficiently open anf! patent to put the mortgagee on inquiry, and to charge him with notice of all that he might have learned by such inquiry. Nor is the mortgagee entitlef! to a lien for the portion of the purchase money unpaid at the time the mortgage was recorded, in the absence of actual notice of the mortgage to the purchasers, as under McClel. Dig. Fla. p. 215. § 6, the recording of a mortgage is only notice to subsequent purchasers anf! creditors. The mortgagor had purchased the land conveyed by the mortgage. but the veudor retained the deed subject to the payment of the purchase price. At the time of the execlltion. of the mortgage he had neither title nor possession. Afterwards he offered to sell the land to D.. as the property of his vendor. giving no notice of the mortgage, but furnishing an abstract showing the title in the vendor. D. purchased the land, and received upon payment of the purchase money the unrecorded deed to the mortgagor and a deed from the latter. both of which were recorded. Held, that the mortgagor had no mortgageable interest in the land, and that D. was not bound by the record of the mortgage.
A mortgage described two lots as "lots 13 and 14 of Burbridge's addition." The bilI for foreclosure alleged ·that it was the intention to convey "lots 13 and 14 of block 1, in Burbridge's addition to Jacksonville." It appeared that there were 10 blocks in Burbridge's addition to Jacksonville. each coutaining lots numbered 13 and 14. While the record showed that the mortgagor had title at the time of the mortgage to lots 13 and 14 of block 1, it also showed that he had in some manner dealt with lots 13 and 14 in block 2, and had at one time given a mortgage on them. lIeld, that the description was too indefinite to afford any notice to a subsequent bona .tide purchaser of lots 13 and 14 in block 1, and that the mortgage would not be reformed as .against him.
Bill for foreclosure of mortgage.