Elliott v. Conner ex rel. Young

Citations

• 63 Fla. 408

Syllabus

<p>1. Under the Statutes of this State a mortgagee acquires only a specific lien upon the property of the mortgagor that is covered by the mortgage, and an instrument of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, which upon its face conveys title to property, may be subject to the provisions of the statute that it “shall be deemed and held a mortgage,” if by extrinsic facts the statute is shown to apply; and in cases of doubt the instrument may when justice re- , quires it be held to be in law a mortgage.</p> <p>2. The relations existing between the parties at the time of its . execution may be considered in determining whether a deed of conveyance of land absolute on. its face was intended to operate as a mortgage to secure the payment of a debt.</p> <p>3. If when an absolute conveyance of property is made it is in legal effect a mortgage it remains a mortgage.</p> <p>4. Where a conveyance of property is absolute on its face, the burden of showing that it was when executed intended to be a mortgage to secure the payment of money, is upon the grantor.</p> <p>5. The conduct of the parties and the circumstances under which the instrument was executed may be shown in evidence as bearing upon the intent and purpose of the parties to the transaction. The mere secret intention of either party as to the purpose of the instrument will not control.</p> <p>6. If from all the facts and circumstances of the case it appears that the real purpose o'f the parties to an absolute conveyance of property was to secure the payment of money then due, and not the actual extinguishment of the debt, the conveyance will be regarded as a mortgage. In such a case the mortgagee may foreclose, or the mortgagor may redeem.</p> <p>7. When an unascertained debt exists which is not clearly extinguished, and the value of property conveyed is considerably greater than the probable total debt, and there is evi