Bradley v. Forbs

Bufokb, J. The appeal in this case is from final decree of foreclosure of a mortgage in favor of Leonard Forbs. The original mortgage was-executed by Peter Forbs and his wife to T. S. Green. After the indebtedness secured *352 by the mortgage was in default, the mortgagee, for good and valuable consideration, transferred and assigned the mortgage and the note secured thereby to Leonard Forbs. ..The assignment of the mortgage was not recorded. Thereafter, Mrs. Drewery loaned Peter Forbs $200.00 and took a mortgage on the same land. The Green mortgage was then on record and not satisfied of record. • There is conflict in the testimony as to a conversation which is alleged to have occurred between Mr. Edmondson of Tallahassee, attorney representing Mrs. Drewery, and Mr. T. S. Green.- The Drewery obligation became in default and suit was' brought on the note against Peter Forbs. Judgment was obtained in that suit and John T. Bradley became the purchaser at execution sale. The Green mortgage was at that time of record and unsatisfied of record. - Bradley testified that Green told him before the sale occurred, at which Bradley was' purchaser, that the Forbs mortgage had been paid and he, Green, would satisfy the same of record. Green denies this and says that he did not agree to satisfy the mortgage of record, though he did say that Peter Forbs was not then indebted to him, Green. •: Bradley also testified that Leonard Forbs told him that the Peter Forbs indebtednes to Bradley secured by the mortgage had been paid. Leonard Forbs denied that. Bradley purchased at a sheriff’s sale. Therefore, as to that purchase the rule of caveat emptor applies. See Gracy et al. v. Fielding, 71 Fla. 1, 70 Sou. 625, in which we said: ■ “Now the rule of caveat emptor applies' in sheriff’s sales. The purchaser at a sheriff’s sale acquires only just such interest as the debtor may have in the land. The creditor proposes to sell and the purchaser to buy only such interest as the debtor has. ‘The parties do not treat for a title.’ *353 3 Devlin on Deeds, No. 1435; Wells v. Van Dyke, 106 Pa. St. 111; Boro v. Harris, 13 Lea (Tenn.) 36; Miller v. Baker, 166 Pa. St. 414, 31 Atl. Rep. 121; Leport v. Todd, 32 N. J. L. 124; McLennan v. Graham, 106 Ga. 32 S. E. Rep. 118; Maghee v. Robinson, 98 Ill. 458; Wright v. Tichenor, 104 Ind. 185; 3 N. E. Rep. 853. This was the holding of the court in Price v. McLeod, supra, in which case McLeod was the owner of an undivided one-fifth interest in the land claimed adversely to the other co-tenants by Price as purchaser of the entire tract at a Sheriff’s sale under an execution against McLeod.” So far as conflicts in the testimony are concerned, the Chancellor appears to have resolved them in favor of the complainant. The appellant relies upon Chapter 6909, Acts of 1915, Section 3841, R. G. S., 5744 C. G. L. This statute has no application in this case, because there was no subsequent purchaser of the mortgage from Green and no creditor of Green involved in this suit. It is true that the note and mortgage were purchased by Leonard Forbs from Green after maturity and, therefore, any defense which might have been made against Green, had he held and attempted to foreclose the mortgage, could likewise be made against Leonard Forbs; but, in the state of the record which we find here it appears that the Chancellor duly considered this phase of the case and rendered his decree accordingly. If Green had satisfied the Forbs mortgage of record, then there is no room for question that such satisfaction would have been binding and the subsequent creditors and purchasers would have been protected in the absence of the record of the assignment of the mortgage and note, but this is not the case. There was no satisfaction of the mortgage to Green and Green’s testimony *354 is that he at all times told inquiring parties that he would not satisfy the mortgage of record. We can not say that the Chancellor clearly erred in his determination of the weight and probative force to be given the evidence in the case, or thát his' findings as reflected by the decree are clearly erroneous. Therefore, the decree should be affirmed and it is so ordered. Affirmed. Whitfield, P. J., and Brown, J., concur. Davis, C. J., and Ellis and Terrell, J., concur in the opinion and judgment.