E. M. GOLLNICK AND ANNA E. GOLLNICK, HIS WIFE, APPELLANTS,
v.
L. W. BARKER, APPELLEE
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The Florida Supreme Court affirmed a lower court's decision that a conveyance absolute on its face was intended as a mortgage. The court emphasized that the true nature of a transaction, not its form, determines its effect.
Yes, an instrument absolute on its face can be decreed a mortgage if the parties' intention was to secure a debt, regardless of the instrument's form.
“Sec. 3836, Revised General Statutes 1920, prescribing the effect of instruments conveying property for the purpose or with the intention of securing the payment of money,” is designed to insure effectuation of the genuine intention of the parties by subordinating thereto the ostensible form in which the transaction is finally' couched.”
Explains the legal principle that the true intention of parties in a transaction overrides the superficial form of the instrument.
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Join FLexlaw to unlock all legal intelligenceAppellants conveyed property to appellee via an instrument absolute on its face. The appellee filed suit to have this conveyance declared a mortgage, …
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Per Curiam.
This was a suit to have a conveyance absolute on its face decreed to be in effect a mortgage and to require the conveyance of the property to the complainant upon the payment of the debt alleged to have been secured with interest thereon. The decree was in favor of the complainant.
“Sec. 3836, Revised General Statutes 1920, prescribing the effect of instruments conveying property for the purpose or with the intention of securing the payment of money,” is designed to insure effectuation of the genuine intention of the parties by subordinating thereto the ostensible form in which the transaction is finally' couched. Neither artifice of form nor superficial declaration of intention will successfully obscure the true nature of the transaction. Cary & Co. v. Hyer, 91 Fla. 322, 107 Sou. 689; Hull v. Burr, 58 Fla. 432, 50 Sou. 754.
While the findings and conclusions of a chancellor, where the testimony is not taken before him but before an examiner or master and the chancellor is not afforded the opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury and are not so conclusive, yet even in that ease they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous. Mock v. Thompson, 58 Fla. 477, 50 Sou. 673; Lucas v. Wade, 43 Fla. 419, 31 Sou. 231.
Affirmed.
Whitfield, P. J., and Terrell and Buford, J. J., concur.
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Citator
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Marcus v. Hull, 142 Fla. 306 (Fla. 1939)…r with the verdict of a jur)c However, its conclusion will not be’ disturbed unless it clearly appears to be erroneous. Bowery v. Babbitt, 99 Fla. 1151, 128 So. 801; Tatum Bros. Real Estate Co. v. Osborn, 79 Fla. 130, 83 So. 703; Gollnick v. Barker, 94 Fla. 885, 114 So. 527; Lucas v. Wade, supra. This case necessarily brings for the consideration of this court the application of Section 5724, Compiled General Laws 1927, which reads as follows: “All deeds of conveyance, obligations conditioned or defeasib…
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Bennett v. Orange State OIL Co., 159 Fla. 440 (Fla. 1947)…to be of no further force and effect. See Watkins v. Burnstein, 152 Fla. 828, 14 So. (2) 569; Markell v. Hilpert, 140 Fla. 842, 192 So. 293; Elliott v. Connor, 63 Fla. 408, 58 So. 241; Stovall v. Stokes, 94 Fla. 117, 115 So. 828; Gollnick v. Barker, 94 Fla. 885, 114 So. 527; Howard v. Godspeed, 101 Fla. 699, 134 So. 294; Holmberg v. Hardee, 90 Fla. 787, 108 So. 211; Fisher v. Grady, 131 Fla. 1, 178 So. 852; Rader v. Prather, supra. It appears from the record here that Orange State Oil Company is not in po…
Authorities Cited
- Rosanna S. Lucas v. Leonidas E. Wade, 43 Fla. 419 (Fla. 1901)
- Hull v. Burr, 58 Fla. 432 (Fla. 1909)
- Mock v. Green B. Thompson, 58 Fla. 477 (Fla. 1909)
- Cary & Co. v. Hyer, 91 Fla. 322 (Fla. 1926)
- Issidore Passett v. Chase, 91 Fla. 522 (Fla. 1926)