Rehearing Denied Nov. 7, 1932.
Error to Circuit Court, Marion County; Fred L. Stringer, Judge.
Action by Ann Chesser and others against J. Griffin Folks. Judgment for plaintiffs, and defendant brings error.
Reversed and remanded for a new trial.
BUFORD, C.J., and ELLIS, J., dissenting.
COUNSEL [106 Fla. 837]C. A. Savage, Jr,. of Ocala, for plaintiff in error.
W. E. Smith, of Ocala, for defendants in error.
In this case the action was ejectment. The declaration was in the statutory form. The sole plea was not guilty. The plaintiffs sought to recover under the issue made by the declaration and plea of not guilty, by showing that a deed absolute in form had been made, executed, and delivered to the defendant, which was in law and in fact a mortgage, because given to secure the payment of money. The court permitted the plaintiff to make such proof. The verdict and judgment were against the defendants. The principal question raised by the writ of error is: 'In an action of ejectment, where the sole issue is that made by a statutory declaration[106 Fla. 838] and plea of not guilty, is parol evidence admissible on behalf of plaintiff in the case, to show that a deed absolute in form held by the defendant, is in law and fact a mortgage because given for the purpose of securing payment of a debt?'
Our statute enacts a recognized rule of equity that all deeds of conveyance conveying
or selling property for the purpose, or with the intention, of securing the payment of money, shall be deemed and held as mortgages, and shall be subject to the same rules of foreclosure and the same regulations and restrictions as are prescribed by law in relation to mortgages. See sections 5724, 5725, C. G. L., sections 3836, 3837, R. G. S. Under these statutes, in no case will the right of possession to property by a mortgagee be recognized in a court of justice in this state, until due foreclosure is had according to the forms of the law providing for foreclosure of mortgages.
At common law the rule was well settled that, in ejectment or in any other form of action at law for the recovery of land, it was incompetent to prove by parol that a deed of conveyance in fee was intended by the parties to be a mortgage, or held as security for money. Under this rule of the common law, it was not permissible for either party in a suit at law to vary by parol proof the terms of a deed absolute on its face, so as to make it operative only as a mortgage security. Bragg v. Massie's Adm'r,38 Ala. 89, 79 Am. Dec. 82; Jones v. Trawick's Adm'r,31 Ala. 253, 256; Parish v. Gates,29 Ala. 254, 261; Finlon v. Clark,118 ...