Henry Seedhouse et al., Appellants, vs. N. B. Broward, as ex Officio Administrator of Mary Dagenhart, Deceased, et al., Appellees, 34 Fla. 509

Taylor, J.: Henry Seedhouse and Helen Seedhouse, his wife, the appellants, on March 29, 1890, filed their bill in equity for the foreclosure of a mortgage in the Circuit Court of Duval county against H. B. Broward as sheriff and ex officio administrator of the estate of Mary Dagenhart, deceased, Frederick W. Dagenhart and Abram Campbell. To the bill as originally framed and filed the defendants F. W. Dagenhart and Abram Campbell interposed separate demurrers, but upon the same grounds, as follows: 1st.

That there was no matter of equity in the bill whereon the court could ground any relief as against said two several defendants. 2nd. Practically a repetition of the above. 3rd. That said bill shows that said Mary Dagenhart was a married woman, and prays that a decree be rendered against her for money. 4th. That said bill shows that the property alleged to have been mortgaged was the separate property of the said Mary Dagenhart, and that she has died since its execution, but fails to show that an executor or administrator has been appointed to administer said estate. f)th.

That the bill shows the property mortgaged to have been the separate property of the said Mary Dagenhart, a married wotnan, but falls to show that she was cognizant of the agreement alleged in the bill by which the engine, boiler and machinery was to become a part of said statutory' estate. 6th.

That said bill alleges that the said Dagenhart promised and agreed to purchase the said engine, boiler and machinery, and to place the same on a brick foundation, so as to become an appurtenant to the land specifically mortgaged, and to become a part of the security for the payment of said sum of money, but fails to show that such agreement or promise, or any memorandum or note thereof was in writing signed by the said Dagenhart. 7th. That said bill shows that said alleged promissory note is in the alternative, to pay Henry Seedhouse or Helen Seedhouse, his wife. 8th.

That said alleged mortgage deed annexed to and made part of the bill of complaint creates an uncertainty as to who is grantee intended. These demurrers to the original bill were sustained by the court as to the fourth ground thereof, but were overruled as to the other grounds set out above. The complainants then by leave of the court amended their bill, that with the amendments made alleges in substance as follows: That on or about the 25th of January, A. D. 1886, Frederick W.

Dagenhart applied to complainants fora loan of money to purchase an engine and boiler and other- machinery for the purpose of establishing a sausage factory.

That the said Dagenhart promised and agreed to purchase the said engine, boiler and other machinery and to place the same on a brick foundation so as to become an appurtenant to the south-western one-half of Lot 8 in Block 24 of Riverside, which said property was the separate estate of the said Mary Dagenhart, and the said machinery, boiler, engine and buildings were to improve and enhance the value of said realty, and were placed thereon with her full knowledge and consent and received the full benefit thereof, and enjoyed the proceeds thereof, and to become a part of the security for the repayment of the said sum of money to be borrowed by the said defendant.

That in accordance with said agreement complainants loaned to the said Dagenhart the sum of one thousand dollars, and the said Dagenhart did purchase with the funds so borrowed the said engine, boiler and machinery and placed them upon the lot as he had agreed to do, thereby by reason thereof becoming a part of said realty, and thereby greatly enhancing the value thereof. That to secure the payment of said loan the defendants F. W.

Dagenhart and Mary, his wife, did on the first day of' February, 1886, make and deliver to complainants their promissory note whereby they promised to pay to the complainants Henry Seedhouse or Helen Seed-house the sum of one thousand dollars three years after its date, with interest from date until paid at the rate of 10' per cent, per annum, payable quarterly; and that to secure the payment of said principal and interest the said Dagenharts did at the same time execute under their hands and seals, and deliver to the said Henry Seedhouse a mortgage deed upon and to that parcel of land situated in Duval county, Florida, more particularly described as being the south-western half of lot number three (3) in square number twenty-four (24), being bounded on the north-east by the north-eastern half of said lot, on the south-east by lot number six (6), on the south-west by lot number four (4), all in said square number twenty-four (24), and on the north-west by Oak street, said half lot herein and hereby conveyed measuring from northeast to south-west fifty-two and one-half (52-)-) feet, and from north-west to south-east one hundred and five (105) feet, being the same piece of land conveyed by deed to Mary Dagenhart, dated January 14th, 1885, and recorded in Book H, pages 62 to 65. .That said mortgage duly executed was delivered to the said Henry Seedhouse and Helen Seedhouse, his wife, and on the fifth of February, 1886, was duly recorded by the Clerk of the Circuit Court of Duval county, Florida, as a mortgage in Book U, page 153 of the public records of said county, which said mortgage was upon the proviso and condition that if the said Mary Dagenhart and Frederick W.

Dagenhart, their heirs, executors and administrators should well and truly pay the said sum of money when due, with the interest thereon, according to the true meaning and intent of said promissory note, and all costs, charges and expenses, including attorneys’ fees, which the parties of the second part might incur or be put to in collecting the same by foreclosure, that then in that event the said mortgage should cease and determine, and be null and void. That in and by said mortgage deed the said Mary Dagenhart and U. W.

Dagenhart did covenant, promise and agree to and with the said Henry and Helen Seedhouse to pay the said sum of money, principal and interest, when due, and all costs and charges, including attorneys’1 fees as aforesaid. That ¡said mortgage deed with said note copied therein is thereto annexed and made part of this bill of complaint.

That on or about May 1st, 1889, as complainants are informed and believe, the said Frederick W. .Dagenhart sold said engine, boiler and other machinery that he had placed upon said lot under and by virtue of his agreement with these complainants, and which had become a part of said realty, to the defendant Abram Campbell, and that the same had been removed from said lot without the knowledge or consent of complainants. That prior to the purchase of said engine, boiler and machinery from the said Dagenhart by the said Campbell they came together to the office of J. W.

Archibald, the solicitor for these complainants, who had the collection of this mortgage in his hands, and spoke to him of the contemplated purchase, and the said Archibald then and there informed the said Campbell and the said Dagenhart that the said engine, boiler and machinery was a part and parcel of the mortgage security, and that the said mortgagees claimed it, and if the said mortgage had to be foreclosed it would be sold as part of the security; that the said Campbell then and there declined to proceed with the purchase, and, in the hearing of the said Archibald, told the said Dagenhart that he would not complete the purchase.

That upon the return of ■complainants to Florida in January of the present year they took a look at the mortgaged premises and were surprised to find that the said engine, boiler and machinery had been removed therefrom, and the buildings erected over them had been destroyed, and that upon inquiring as to the whereabouts of said engine, boiler, machinery, etc., found that they had been bought by the said Abram Campbell from the said F. W. Dagenhart after the death of said Mary Dagenhart.

That the sale of the said engine, boiler and machinery by the said Dagenhart to the said Campbell was a fraud upon the rights of complainants, and that the said Campbell, having notice of the rights of complainants, acquired no rights in said property as against them, but they are afraid that he will dispose of said property to some innocent purchaser without notice of the equities of complainants, and thereby jeopardize their security; and the complainants aver that without the engine, boiler and machinery their security is not sufficient to repay them their money, interest and costs.

That since the execution of said note and mortgage the said Mary Dagenhart has departed this life, and that on January 8th, 1890, the said N. B. Broward was by the Hon. W. B. Owens, Probate Judge of the county of Duval, duly appointed as administrator of her said estate, and ordered to take charge of and administer upon her estate, and that he duly qualified and proceeded to act under such order. That the sum of one thousand dollars mentioned in said note and mortgage, with interest thereon from the first day of May, A. D., 1889, is due and remains unpaid to your orators.

The prayers of the bill are, that an account may be taken of what is due upon said note and mortgage for principal and interest, and the costs, charges and expenses of the suit, including ■attorneys’ fees therein. That the defendants Mary Dagenhart and Frederick W.

Dagenhart be decreed to pay the same; and that the defendants Mary Dagenhart and Frederick Dagenhart, and all persons claiming by, under or through them subsequent to the execution of said mortgage, and all other persons, although not parties to this suit, who have any liens of judgment or decree subsequent to the mortgage of' complainants, may be barred and foreclosed of all equity of redemption and claim of, in and to the said'mortgaged premises, and every part and parcel thereof, with the appurtenances.

That in default of said payments as aforesaid, all and singular of the said mortgaged premises be sold under decree of this court, and1 that out of and from the proceeds arising from the-sale thereof there may be paid, first, the taxes, if any remain unpaid thereon; second, the costs, charges and expenses of this suit, including attorneys’ fees; third,, the principal sum mentioned in said note and mortgage, with the interest thereon. That a special master ■ be appointed to take account of the amount due to • complainants on the note and mortgage for principal, interest, costs, charges and attorneys’ fees.

There is also a prayer for general relief, for subpoena and for - injunction to restrain the defendant Abram Campbell from selling or encumbering the said engine, boiler and’ machinery.

The original mortgage is attached to the bill as part thereof, and in this mortgage the lot of land therein included is partly described and referred to as “being - the same piece of land conveyed by deed to Mary Dagenhart dated January 14th, 1885, recorded in Book H, pages 62 to 65.” The mortgage conveys the lot de- ■ scribed, “together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining.” The mortgage contains further an express covenant that the mortgagors are ■ lawfully seized of the premises thereby conveyed in. fee simple, and that they have good right to sell and convey the same to the mortgagees.

The note, a copy of which is incorporated in the mortgage, is made payable to Henry Seedhouse or Helen Seedhouse, and while the mortgage in its initiatory clause, descriptive of the parties between whom it is made, describes the party of the second part or mortgagees as being Henry Seedhouse or Helen Seedhouse, yet in its granting clause conveys the property to the party of the second part and to (ít7¿eir heirs and assigns,” and its habendum clause provides that the premises, with its appurtenances, shall be held “unto the said parties of the second part, their heirs and assigns.” Upon the .verified bill and some accompanying affidavits a temporary injunction was granted as prayed for.

To the bill as amended the defendants F. W. Dagenhart and Abram Campbell again interposed their several demurrers, each of them demurring thereto upon the same grounds, as follows: 1st. Because said amended bill alleges that the real estate alleged to have been mortgaged, and sought to be charged, is the separate estate of the said Mary Dagenhart, but said bill does not disclose in whom the legal title is vested for her benefit, nor is the said trustee made a party defendant to said bill. 2nd.

Because said amended bill shows that said alleged promissory note is in the alternative, to pay Henry Seedhouse or Helen Seed-house, his wife, and is on that account void for uncertainty. 3rd. Because the mortgage deed annexed to and'made part of said bill creates an uncertainty as to who is the grantee intended, and is on that account void as to both Henry Seedhouse and Helen Seedhouse, his wife. 4th.

That the court can not render the decree for the sale of the said property as prayed for, for that it is shown by the said bill to be the separate estate of the wife, and that an indispensable party defendant is omitted to be made.

The defendant Abram Campbell along with his demurrer to the amended bill also filed his several plea-to the bill, in which it is alleged that the engine, boiler and other machinery was purchased and placed upon the premises in question some time after the said mortgage had been executed by the Dagenharts, and that it did not thereby become a part of the said realty and part of the security for the repayment of said sum of money, and that when he purchased, same from the defendant F. W. Dagenhart it was not subject to said' mortgage lien.

On the last of September, 1890, the demurrer of Abram Campbell to the amended bill was sustained by the court; and on the 29th of November, 1890, the demurrer of F. W.

Dagenhart to said-amended bill was also sustained, and in the order of the Court sustaining same it is further ordered as follows:; ‘ ‘And the demurrer interposed by Abram Campbell on the same day having been heretofore sustained, it is-ordered that the bill filed herein be dismissed as to-these defendants.” On the same day, and in open court, as is recited in the record, the complainant entered their appeal from the last mentioned orders to this court.

Before dealing with the questions presented by the-rulings upon the demurrers,, we "will notice an irregularity that appears in the service of the subpoena in the cause. The return- of service,, endorsed on such subpoena, shows that said subpoena was served upon the defendants N.. B.. Broward and Abram Campbell by N. B. Broward as sheriff' of Duval county, by one-J. A. Yinzant as Broward’s deputy.. The maxim, qui' fácil per alitr/ni fácil per s-eT applies- in all its force to the official acts of deputy sheriffs.

They act officially for- and in the name and stead of their principal, and all of their official acts are the acts of their principal.

Under the law, as it existed at the time of the attempted service of this subpoena (sec. 5, p. 938 McClellan’s Digest) whenever the sheriff of a county was interested in. any cause, a coroner of the county, or an elisor appointed specially by the court, was the proper person to serve all writs in such cause; and whenever the service of a subpoena in chancery was made by any other-person than the sheriff, the return of such service was. required to be made under oath (sec. 3, p. 153 McClellan’s Digest). Mr.

Broward being an interested party to the suit, could not, either in person or through a deputy, legally serve or execute any process therein upon any of the defendants therein, and particularly so as upon himself; and were it not for the subsequent voluntary appearance of the parties in the cause through their attorneys, we should, without hesitation, declare that the court below had never acquired jurisdiction over the persons of the defendants Broward and Campbell therein. The defendant F. W. Dagenhart being out of the State, was served by publication.

On the-5th day of May, 1890, the rule day to which the subpoena was made returnable, however, the following-entry of appearance was filed and made in the cause: (< In Circuit Court, Fourth Judicial Circuit of Florida, Duval County,. In Chancery. Henry Seedhouse and Helen Seedhouse vs. Frederick W. Dagenhart, Abram Campbell et al. The clerk of said court will please enter defendants.” appearance in foregoing suit. Tours truly, T. A & B. B.

MacDohelx,^ Defendants’ Solrs.” This appearance, we think, is a general one for all of the defendants in the cause, though only two of them are expressly named in the heading of the paper by whichjthe cause is identified to which the appearance is to apply. The only other defendant in the suit not specially named therein was H. B.

Broward, and he is referred to and included therein by the use of the abbreviated “ et alius.” Had it been the intention to limit this appearance to Dagenhart and Campbell, the two defendants expressly named in the style of the cause, then the body of the appearance should have confined it to them, but this is not done; the direction to the clerk therein is, in the most general terms, to “ enter defendants’ appearance in foregoing suit.” Ho question is raised during any subsequent stage of the suit as to Broward not being brought in as a party defendant, yet we find the same solicitors who entered this appearance subsequently objecting as a ground of demurrer to the bill that a supposed trustee for Mary Dagenhart’s mortgaged property has not been made a party defendant, thus showing that they regarded Broward, as her administrator, as being properly before the court.

And again, in the subsequent pleadings interposed by the same firm of attorneys on behalf of the defendants, Dagenhart and Campbell, pains seem to have been taken to specify particularly therein on whose especial behalf each pleading was interposed. Had this appearance been intended only for Campbell and Dagenhart, it is fair to assume that the like particularity would have been exercised therein.

The firm of solicitors who entered this appearance are well known and reputable members of the bar, and the presumption is that they would not have assumed to appear thus generally for all the defendants in a cause unless duly authorized so to do. For these reasons we think that the appearance entered was a general voluntary one for the defendant Broward, as well as for the others, and that thereby the illegality of the service of the subpoena has been waived and cured, and that the court by means of his voluntary ■appearance acquired full jurisdiction over his person in the cause.

No point or question has been made here upon this irregularity in the service, but, we have noticed and dwelt upon it because of some difference of opinion in the minds of the court as to whether the ■appearance entered could be construed as an appearance for the defendant Broward, thereby doing away with the necessity for service of subpoena upon him in the regular way.

As to the first ground of the demurrer to the bill as ■amended we find that there is a loose general allegation in the bill that the real estate covered by the mortgage is the “separateestate ” of Mary Dagenhart, but it is evident from other parts of the bill, and especially from the mortgage, made a part thereof, that this allegation was the result of inadvertence on the part of the draughtsman of the bill, who, evidently, at -the time, was unmindful of the technical distinction established in this State between the generic terms “separate estate” and “separate statutory property,” as applied to the property of married women.

The wife’s separate estate being an equitable estate where the legal title is vested in some other person as trustee for her benefit, her separate property, or separate statutory property, being all property the legal title to which is vested in her individually for her own use and benefit. Dollner, Potter & Co. vs. Snow, 16 Fla., 86; Harwood vs. Root, 20 Fla., 940.

The bill in describing the mortgaged land describes it ¡as ‘‘being the same piece of land conveyed by deed to Mary Dagenliart dated January 14th, 1885, and recorded in Book H, pages 62 to 65.” The mortgage itself attached as a part of the bill describes it also in the same way, and, in addition to this the mortgage asserts in one of its covenants that the mortgagors ‘ ‘ are lawfully seized of the said premises in fee simple and have good right to sell and convey the same,” etc.

All of which negatives the idea that the title to said property rests in a trustee, and that the technical term separate estate properly applies thereto.

We think, that the bill and its exhibits contains enough to show that the legal title to the mortgaged premises was in Mary Dagenhart, and that in executiug the mortgage she was authoritatively establishing a lien upon property owned by her as her “ separate property,” and we think that the patently careless use of the expression “ separate estate” in the bill should have been ignored, and the feature of the demurrer founded thereon overruled as being too technical.

There is no merit in the second and third grounds of the demurrer to the amended bill predicated upon the • fact that the mortgage and note secured thereby are made payable in the alternative, to Henry Seedhouse- or Helen Seedhouse, his wife.

This court has repeatédly held that a mortgage under our statutes does not divest the mortgagor of the legal title, nor vest it in the mortgagee, but that it creates only a specific lien upon the property covered thereby; and, in effect, that a mortgage, of itself, is not a conveyance of the property, but a contract between the mortgagor and the-mortgagee whereby the former grants to the latter a. specific lien upon his property. McMahon vs. Russell, 17 Fla., 698; Berlack vs. Halle, 22 Fla., 236; Roan vs. Holmes, 32 Fla., 295, 13 South., 339.

Viewed as a contract, requiring the interposition of judicial action to-enforce its provisions, we are at a loss to discover any reason why the fact that it and the debt it secures is-made payable to one or the other of two parties-definitely named therein should render it void. There-are many cases in the books where contracts made payable similarly in the alternative have been recognized and enforced by the courts. Osgood vs. Pearsons, 4 Gray, 455; Willoughby vs. Willoughby, 5 N. H., 244; Walrad vs. Petric, 4 Wend., 576; Spaulding vs. Evans, 2 McLean (C. C.), 139; Prindle vs. Caruthers, 15 N. Y., 425.

There is some variance in the authorities as to whether, in such cases, the action can be maintained alone by either of the parties named as alternative payees, or whether it must be instituted jointly by both of the payees — see authorities supra. We are inclined to the opinion that the better practice is that all of the parties named as alternative payees should join in the suit to enforce such a contract, as has been done in the - case under consideration.

We think the allegations of the bill to the effect that the engine, boiler and machinery mentioned were put - upon the land mortgaged and became an appurtenant thereto as part of the realty and became fixtures thereon, and part of the security for the complainants’ claim, are sufficient to put the defendants to their answer to meet it.

If their annexation to the land wras made under such circumstances as to stamp them with the attributes of fixtures, it makes no difference that they were placed upon the land subsequently to the execution of the mortgage, as between the mortgagor and mortgagee and persons with notice, they became subject to the lien of the mortgage without any special mention of them being made in the mortgage. 8 Am. & Eng. Ency. of Law, p. 50 et seq. and citations; 1 Jones on Mortgages (4th ed.), 428 et seq. and citations.

In establishing the fact whether a given thing is or is not a fixture upon land, the intention of the owner in placing it there, to be gathered from his declarations, and from the character, relations and purposes of the property, is an important element, sometimes of controlling importance. Rogers vs. Brokaw, 25 N. J. Eq., 496; Jones vs. Ramsey, 3 Ill., App., 303; Robertson vs. Corsett, 39 Mich. 777; Perkins vs. Swank, 43 Miss., 349; Wolford vs. Baxter. 33 Minn., 12, S. C., 53 Am. Rep., 1; Ottumwa Woolen Mill Co. vs. Hawley, 44 Iowa, 57, S. C., 24 Am. Rep., 719; Sweetzer vs. Jones, 35 Vt., 317, S. C., 82 Am.

Dec., 639; Winslow vs. Merchants Insurance Co., 4 Met., 306, S. C., 38 Am. Dec., 368; Holland vs. Hodgson, L. R., 7 C. P. Cases, 328; Harris vs. Haynes, 34 Vt., 220; Dooley vs. Crist, 25 Ill., 551; Arnold vs. Crowder, 81 Ill., 56, S. C., 25 Am. Rep., 260.

As proof of the attention with which the Dagenharts placed this engine, etc., upon this land, that they placed ’ it there with the intention that it should become a permanent improvement and addition to the realty, the complainants will be permitted to prove the allegation in their bill in reference to the agreement by Dagenhart to purchase such engine and machinery with the money loaned, and to place it upon -the property as a fixture, and that he so did in compliance with such agreement; but, unless the facts and 'circumstances connected with the placing of such engine, machinery, etc., upon the land are sufficient to stamp it in law as a fixture thereon, the complainants can not enlarge the scope of their mortgage by proof •of a cotemporaneous agreement, not included in the mortgage itself, to the effect that a thing not a fixture in law or in fact should be considered and treated as such.

They can prove the alleged agreement, hot that .such agreement of its own force makes that a fixture that otherwise would not be, but as a circumstance that tends to show with what intent the machinery was placed upon the land, such intent, as before shown, being an important element in determining whether it is or is not a fixture. Taylor vs. Collins, 51 Wis., 123, 8 N. W., 22. The court below erred in sustaining the demurrers to the amended bill, and in dismissing the bill as to the demurrants; said demurrers should have been overruled and the demurring defendants required to answer.

No citation upon the appeal taken appears to have been served upon the defendant Broward as administrator; the record, however, shows that the appeal was taken in open court, during a regular term, and upon the same day when the order appealed from was pronounced. Under these circumstances no citation was necessary to bring him or any of the defendants before this court upon the appeal. Sec. 6, p. 841 McClellan’s Digest.

The orders appealed from are reversed with directions to overrule the demurrers interposed by the defendants Campbell and Dagenhart, and for such further proceedings as shall be proper in the premises.