H. D. BROWN ET AL., APPELLANTS,
v.
E. P. BANNING ET AL., APPELLEES
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A court decree finding an absolute conveyance of land to be a usurious mortgage was upheld on appeal. The transaction, structured as a conveyance with reconveyance agreement and lease, was found to constitute a mortgage with usurious terms, and the lower court's factual findings were not clearly erroneous.
The chancellor's decree finding the transaction to be a usurious mortgage as to the $15,000 bonus is affirmed. Where evidence is conflicting but legally sufficient to sustain the chancellor's finding that the concurrent execution of an absolute conveyance, reconveyance contract, and lease constitutes a mortgage under statute with usurious terms, the findings will not be disturbed unless clearly erroneous.
“There was an absolute conveyance, a contract to re-convey and a lease of the premises to the grantor. The amount loaned was $35,000.00, while the agreement to reconvey was to cover the amount with 8 °/o interest together with a bonus of $15,000.00 for the loan and an indebtedness of the original grantors to attorneys of $20,-000.00, making a total of $71,400.00.”
Establishes the structure of the transaction and the total amount required for reconveyance, including the allegedly usurious bonus.
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Join FLexlaw to unlock all legal intelligenceDefendants loaned $35,000 to the grantors. The transaction was structured as an absolute conveyance with a contract to re-convey and a lease back to t…
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Per Curiam.
A bill was brought to decree a conveyance to be a usurious mortgage and for appropriate relief. The chancellor decreed for the complainants and the defendants appealed.
There was an absolute conveyance, a contract to re-convey and a lease of the premises to the grantor. The amount loaned was $35,000.00, while the agreement to reconvey was to cover the amount with 8 °/o interest together with a bonus of $15,000.00 for the loan and an indebtedness of the original grantors to attorneys of $20,-000.00, making a total of $71,400.00. The chancellor on the evidence found the transaction to be a mortgage arid that it is usurious as to the $15,000.00 bonus. There is ample evidence to sustain this finding and as it does not appear to be erroneous, the decree will not be disturbed. See §2494 Gen. Stats. 1906; Connor v. Connor, 59 Fla. 467, 52 South. Rep. 727; Elliott v. Conner, 63 Fla. 408, 58 South. Rep. 241; Mitchell v. Mason, 65 Fla. 208, 61 South. Rep. 579; Hull v. Burr, 58 Fla. 432, 50 South. Rep. 754; Pervis v. Frink, 61 Fla. 712, 54 South. Rep. 862 ; Dixon Lumber Co. v. Jennings, 63 Fla. 405, 57 South. Rep. 615; Lovett v. Armstrong, 61 Fla. 681, 54 South. Rep. 381; 2 Florida Compiled Laws 1914 §2494 and notes.
Where the evidence is conflicting but it is legally sufficient to sustain a finding of the chancellor that the cir cumstances under which an absolute conveyance of land with a contract to reconvey the land and a lease thereof to the grantor were concurrently executed, constitute the transaction a mortgage under the statute, and the evidence shows usury in the transaction as found by the chancellor, the findings will not be disturbed unless shown to be clearly erroneous.
Affirmed.
All concur.
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Markell v. Hilpert, 140 Fla. 842 (Fla. 1939)…. Brady was not followed by this Court in the [*855] cases of Shad v. Livingston, 31 Fla. 89, 12 So. 646; Smith v. Hope, 51 Fla. 541, 41 So. 69; Connor v. Connor, 59 Fla. 467, 52 So. 729; Elliott v. Connor, 63 Fla. 408, 58 So. 241; Brown v. Banning, 71 Fla. 208, 71 So. 327. In the case of Howard v. Goodspeed, 101 Fla. 699, 135 So. 294, this Court reaffirmed the language in Elliott v. Connor, supra, viz.: “If there be a doubt as to the real purpose for which the deed was executed by Mrs. Connor and therefo…1 / 3
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Banning v. Brown, 76 Fla. 94 (Fla. 1918)…rtgage discharging the said premises from the lien thereof.” [*102] While the defendants appealed from this decree, the complainants, appellants here, did not appeal and filed no cross assignment of errors. The decree was affirmed. Brown v. Banning, 71 Fla. 208, 71 South. Rep. 327. As Banning and others were asking the aid of a Court of equity to have a conveyance absolute decreed to be a mortgage for their benefit, they offered to do equity. 29 Am. & Eng. Ency. Law (2nd ed.) 553; 39 Cyc. 1010; 22 Ency. P…
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Authorities Cited
- Mitchell v. Mason, 65 Fla. 208 (Fla. 1913)
- Hull v. Burr, 58 Fla. 432 (Fla. 1909)
- Rubie C. Connor v. Connor, 59 Fla. 467 (Fla. 1910)
- Elliott v. Rubie C. Conner, 63 Fla. 408 (Fla. 1912)
- Dixon Lumber Co. v. Jennings, 63 Fla. 405 (Fla. 1912)
- Pervis v. Talulah H. Frink, 61 Fla. 712 (Fla. 1911)
- Dozier S. Lovett v. Armstrong, 61 Fla. 681 (Fla. 1911)