Thomson v. Kyle , 39 Fla. 582 ( 1897 )

Carter, J.:

I. The question presented by the plea of Della K. Thomson is an interesting one, and one upon which the authorities are not in entire accord. It is not denied by appellants that had the mortgage sought to be foreclosed in this case been executed in this State, it would have been valid and enforceable under our laws. Indeed, it has been held by this court, on more •than one occasion, that a mortgage properly executed by a married woman and her husband, conveying the wife’s separate statutory real estate as security for her husband’s debt, is valid. Dzyialynski vs. Bank of Jacksonville, 23 Fla., 346, 2 South. Rep. 696; Ballard vs. Lippman, 32 Fla., 481, 14 South. Rep. 154. It is insisted, however, that under the laws of Alabama a married woman is without capacity to bind herself or her property as security for the debt of her husband, and as the mortgage sought to be enforced in this case was executed, and the debt secured thereby, was payable in that State, and all the parties were there domiciled, that those laws necessarily entered into and became a part of the contract rendering it void in that State; and that, being void in Alabama, it is by virtue ■of interstate law, void in Florida. It may be admitted that this argument has strong application to the note executed by Mrs. Thomson with her husband, which the mortgage was given to secure, for the note being a general personal obligation, if void by the laws of the State in which it was executed and made payable, it ought likewise to be void in every other State where it is sought to be enforced. But it does not follow that because Mrs. Thomson is not bound by ■the note it is for that reason totally void. It still remains a valid obligation of her husband which she can in this State secure by a mortgage of her separate statutory property. Dzyialynski vs. Bank of Jacksonville, 23 Fla., 346, 2 South. Rep. 696. We do not understand that any principle of interstate law requires us to test the validity or sufficiency of conveyanees of, or liens upon, real estate in this State by the laws of other States or Nations, even though snch contracts may have been executed, or given to secure the-performance of some act, within their jurisdiction. The reasons why we should not are obvious. The-subject-matter, with reference to the title of which the-the conveyance or lien is executed, being at the time' of such execution an immovable thing, not only located beyond the control of that' sovereignty within whose jurisdiction the contract is executed, and forever so to remain, but then within the exclusive jurisdiction of another independent sovereignty, and forever so to remain, the parties to such conveyance are presumed to have contracted, at least so far as the immovable thing is concerned, with reference to the laws-of that jurisdiction within whose borders the thing is situated. And no sovereign State, without express-legislative sanction, is presumed to surrender to owners-of immovable property within its limits the power to encumber or change the title thereto in any other manner than that pointed out by its laws. It is, therefore, almost universally held that so far as real estate or immovable property is concerned, we must look to the-laws of the State where it is situated for the rules-which govern its descent, alienation and transfer, and for the construction, validity and effect of conveyances-thereof (United States vs., Crosby, 7 Cranch, 115; McGoon vs. Scales, 9 Wall. 23; Brine vs. Insurance Co., 96 U. S., 627; Gault vs. VanZile, 37 Mich., 22; Bissell vs. Terry, 69 Ill., 184; West vs. Fitz, 109 Ill., 425; Fessenden vs. Taft, 65 N. H. 39, 17 Atl. Rep. 713; Curtis vs. Hutton, 14 Ves. 537; Frierson vs. Williams, 57 Miss., 451; Crolly vs. Clark, 20 Fla., 849; Frazier vs. Bogg, 37 Fla., 307, 20 South. Rep. 245); and it is •to the same law that we must look for the rules governing the capacity of the parties to such contracts or conveyances, and their rights under the same. Doyle vs. McGuire, 38 Iowa, 410; Baum vs. Birchall, 150 Pa. St. 164, 24 Atl. Rep., 620; Chapman vs. Robertson, 6 Paige Chy. 627, S. C. 31 Am. Dec. 264; Succession of Larendon, 39 La. Ann. 952, 3 South. Rep. 219; Succession of Cassidy, 40 La. Ann. 827, 5 South. Rep. 292; 2 Parsons on Contracts, *572; Story on Conflict of Laws, sec. 431; Rorer on Interstate Law, p. 263. It would seem, therefore, that upon principle the mortgage in this case should be subjected to the laws of this State, in order to ascertain its validity, construction and the capacity of the parties to execute it, rather than to the laws of the State of Alabama, within whose borders the real estate is not situated, and as to which her laws can have no extra-territorial effect. While a contrary opinion was entertained in Ohio (Evans vs. Beaver, 50 Ohio St. 190, 33 N. E. Rep. 643) it has been held in several well-considered ■cases that although by the laws of the State of a married woman’s domicile she has no capacity to execute a mortgage upon her separate estate as security for the debt of her husband, yet if she in that State executes a mortgage of that character upon real estate situated in another State whose laws permit a married woman to mortgage her property to secure such a debt, the mortgage will in the latter State be held valid, and enforceable in its courts by appropriate proceedings : Post vs. First National Bank, 38, Ill., App. 259; affirmed in 138 Ill., 559, 28 N. E. Rep. 978; Cochran vs. Benton, 126 Ind. 58, 25 N. E. Rep. 870; Johnston vs. Gawtry, 11 Mo. App. 322. See, also, Frierson vs. Williams, 57 Miss., 451; Goddard vs. Sawyer, 91 Mass., 78; Swank vs. Hufnagle, 111 Ind., 453, 12 N. E. Rep. 303, where the same principles, were applied to a different state of facts. We hold, that, notwithstanding Mrs. Thomson’s incapacity by the laws of Alabama to execute the mortgage sought to be foreclosed here, she was capable under our laws, of executing in Alabama, a mortgage upon her separate statutory real property in this State to secure her-husband’s debt, and that her plea was properly overruled. This conclusion also disposes of those portions of the cross bill and answer of the defendant. John M. Thomson which cover the same matters as-this plea.

II. The answer and cross-bill of the defendant John M. Thomson alleged that there was included in the-obligation evidencing the mortgage debt the sum of $300 which, under the laws of the State of Alabama, was usurious interest,, and that under the laws of that-State usury forfeited all interest upon the principal debt as to which unlawful interest was charged. As. this obligation was a personal one, and it was executed and to be performed in the State of Alabama, having no reference to immovable property in this State, we think its validity and interpretation are governed by the laws of the former State. Perry vs. Lewis, 6 Fla., 555. Therefore, although in this State there-were no laws against usury át the time of the execution of this obligation, yet if it is tainted with usury by the laws of Alabama, where it was executed, and made payable, and where all the parties resided at the-time of its execution, we think the infirmity follows it-to this State, even when secured by a mortgage on-lands in this State. The authorities are not entirely unanimous on this point, but we think the weight of them, supported by principle, sustains the proposition that a note executed and payable in one State, though secured by a mortgage on lands in another, will be governed as to the rate of interest .it shall bear by the laws of the former; and if by such laws all interest is forfeited for usury, the same result will follow, upon foreclosure of the mortgage securing it, in the State where the mortgage lands are situated. 1 Jones on Mortgages, sec. 657; 2 Parsons on Contracts, *585; Story on Conflict of Laws, sec. 305; Rorer on Interstate Law, p. 110 et seq.; Arnold vs. Potter, 22 Iowa, 194; Maynard vs. Hall, 92 Wis., 565, 66 N. W. Rep. 715; DeWolf vs. Johnson, 10 Wheat. 367; Call vs. Palmer, 116 U. S. 98, 6 Sup. Ct. Rep. 301.

III. We think the rulings of the Circuit Court upon those portions of the answer and cross-bill of the defendant John M. Thomson, relating to transactions and settlements arising out of and in connection with the business of the Birmingham Safe and Lock Co., were correct. The appellants say in their brief that these matters were not introduced into the cross-bill and answer for the purpose of obtaining any settlement thereof, but only to show that in connection with a transfer of stock in said company the note and mortgage now sought to be foreclosed were treated of in such a way as to show that complainant is now debarred of the relief sought by foreclosure of the mortgage. As appellants have confined their argument to this statement of their claim, we shall consider that question only, without expressing an opinion as to whether the items claimed in the cross-bill as set-offs to the mortgage debt can, either by answer or cross-bill, be available as such in an equitable proceeding to foreclose the mortgage.

It was distinctly averred in the cross-bill, as well as the answer, that the agreement entered into between the complainant and the defendants on September 12, 1891, was the result of negotiations for a final settlement of all matters between the parties, but that the complainant declined to permit the note and mortgage now sought to be enforced to be included in such settlement. By the terms of the agreement of September 12, 1891, the complainant became the owner of all the stock and plant of the Safe & Lock Company; and the defendant John M. Thomson retained an option authorizing him to sell the Safe & Lock Company’s business at not less than $25,000, which amount complainant was to accept in full of all demands against defendant, release all claims to the capital stock and plant of the company, and allow defendant as commissions for making such sale any amount realized therefrom in excess of $25,000, and in addition the note and mortgage involved in this suit. It is very clear that this agreement did not regard the note and mortgage as settled; on the contrary, it was thereby recognized as a valid existing obligation. It is nowhere averred that the defendant secured, or tried to secure, a purchaser for the Safe & Lock Company’s property, or that he could have secured one within the reasonable time contémplated by his option. The sale of this property by defendant at not less than $25,000 was a condition precedent on his part to his right to recover commissions or to a surrender of the note and mortgage; and in regard to conditions precedent it is an elementary rule of law that there must be at least a substantial performance thereof in order 'to authorize a recovery as for performance of the contract. An allegation that the opposite party refuses to permit performance of conditions precedent is not -equivalent to an allegation of performance (Myrick vs. Merritt, 22 Fla., 335); and especially is this true where the complaining party, as in this case, does not allege his willingness and ability to perform at the time of such refusal, or at any time prior to the expiration of the period fixed for performance. It is true that an absolute repudiation of his part of a contract by one of the parties thereto prior to the time fixed by the contract for performance of the agreement of the other party, or while the contract is being performed by such other within the time limited, will entitle such other party to an action for damages as for a breach of the contract (Myrick vs. Merritt, 22 Fla., 335; Sullivan vs. McMillan, 26 Fla., 543, 8 South. Rep. 450); but in this case the defendant does not allege or claim any damage to him arising from the complainant’s alleged repudiation of the contract, and in no case can a repudiation of a contract by one party be held equivalent to performance, or a legal excuse for non-performance by the other party of conditions precedent, so as to authorize recovery as for performance of such conditions precedent.

IV. The questions of usury in, and payments made upon, the note and mortgage sought be foreclosed were matters of defense proper to be pleaded in defendant’s answer (1 Beach’s Mod. Eq. Pr., sec. 349; Wiltsie on Mortgage Foreclosure, secs. 344, 411), and for that-reason improper to be exhibited by cross-bill, as the amounts so claimed were alleged to be less than the mortgage debt. Sanderson vs. Sanderson, 17 Fla. 820; Sammis vs. L’Engle, 19 Fla. 800.

V. The exceptions of defendants to the special master’s report were properly overruled. The reference decree authorized the master “to take testimony and make an accounting,” and this decree was entered by express consent of the defendants. If, in practice, it. be irregular to refer a chancery cause for an accounting prior to an interlocutory decree settling the equities, as contended by defendants, this irregularity in the present case was committed by defendants’ consent, and they are, therefore, in no situation to insist, upon it for a reversal of the final decree.

VI. We think the court below should have allowed as credits upon the mortgage debt the payments-, claimed by defendants to have been made thereon by Roberts and Taylor. The defendant John M. Thomson testified positively that the complainant had admitted to him that he had collected the amount claimed. from Roberts, and that Taylor paid .complainant the-money claimed to have been paid by him in defendant’s presence in May, 1890. The complainant does; not deny collecting the amounts claimed from Roberts, and Taylor, nor does he deny telling defendant that he had collected the amount claimed from Roberts. He does not state when these collections were made, but says that all amounts collected by him from Taylor and Roberts were accounted for by him to defendant at a settlement between them dated January 18, 1890. That in this settlement all unsecured claims, against defendant were included, and the collections from Roberts and Taylor were accounted for, and the-note and mortgage sought to be foreclosed were given for the balance due upon such settlement. It is quite, evident that complainant is mistaken as to these collections being included in that settlement, because his. receipt to defendant for the notes of Rankin Roberts,, upon which the collection from Roberts claimed as a payment was made, is dated January 28, 1890, ten days after the complainant claims to have accounted for the collection from Roberts. This receipt expressly states that the proceeds of the Roberts notes-when collected are to be placed to the credit of John M. Thomson’s indebtedness to complainant.

YII. The appellee states in his brief that he is willing to remit the amounts found by this court proper to be deducted on account of usury, according to the-allegations of the answer of the defendant John M.. Thomson, in case this court is of opinion that the Circuit Court ought to have allowed the defense of usury in this case. We are of opinion that the court should,, under the allegations of the answer, have deducted from the mortgage debt the sum of $300 claimed to have been usurious, together with all interest upon, that sum and upon the $600 principal debt upon which the said sum of $300 usurious interest was charged. It was not alleged in the answer or cross-bill that the $100 charged for advancing the $1,820, was illegal interest or usurious according to the laws of the State of Alabama. We think, therefore, that the exceptions-to this item in the answer were properly sustained. 1 Beach’s Mod. Eq. Pr. sec. 349 and notes. The final decree includes interest at 8 per cent, upon the mortgage debt to the date of the decree. The usurious-item of $300 with all interest upon same, and all interest upon the $600 above mentioned, should have been excluded from, and the payments made, viz:-$216.66, May 1, 1890, and $400, May 10, 1890, should have been duly credited to, the mortgage debt in computing the amount due thereon for the final decree of foreclosure. The usurious item and the interest to-be deducted on account thereof at the date of the final ■decree of foreclosure amounted to $564.80, the payments with interest to the date of the decree, amounted ■to $781.74, a total of $1,346.54. We think this sum is proper to be deducted from the amount of the decree ■of foreclosure, and will modify, same to that extent.

It will, therefore, be ordered that the decree of foreclosure, dated September 22, 1893, be modified so that the amount therein decreed to be due for principal, interest and attorney’s fees upon the mortgage debt at the date of the decree will be $2,750.06, instead of $4,096.60, and as modified that decree will be affirmed. Garvin vs. Watkins, 29 Fla. 151, 10 South. Rep. 818; Price vs. Boden, 39 Fla. 218, 22 South. Rep. 657. The money decree for deficiency, entered January 25, 1894, is reversed, with directions to the Circuit Court to enter judgment for the proper amount of such deficiency, taking as a basis for estimating same the decree of foreclosure as modified by this court. The appellee will be taxed with the costs of this appeal.