Nelson v. Watson

This is an original proceeding in habeas corpus.

The petitioner was arrested charged with the offense of having failed to place a documentary stamp upon a written instrument on which it was required under the provisions of Chapter 15787, Acts of the Legislature of 1931. The written instrument on which it was alleged the petitioner failed to place the required revenue stamp was set out in the affidavit as follows:

"HERNDON'S INC.

"Tallahassee, Florida, August 30, 1933.

"Delivered to ................. Robert Nelson "Address ...................... "Post Office .................. Tallahassee, Florida. "Employer .....................

"Pcs. No. Finish Size Factory Statement of Received value

"one oak std. Rocking chair $2.50 .50

"Paid No Dollars .50 Cents Cash and which is to be applied together with all goods in exchange as rent for the first month only, and I further agree at the end of said month to surrender and deliver all of the above described property to HERNDON'S INCORPORATED, unless I exercise my option and continue to rent the same, when I will pay the sum of No Dollars Fifty cents on the 30th day of each month hereafter in advance for the monthly rental of said goods.

"I further agree to hold goods as the property of Herndon's Inc., at the address given above and not to allow same to be moved without its written consent, to keep same in good condition and allow its representatives to enter and inspect goods at all times and at the termination of this lease to return all goods received in good order, usual wear excepted.

"Should I fail to comply with any of the above conditions I hereby authorize said Company or its agents to terminate this lease without notice and leave and license is hereby given said company or its agents to enter without notice any premises which I occupy to search for and retake possession of all their goods received and without being liable for any suit, action or damage for so doing either from myself or anyone claiming under or through me, and further, I will not be entitled to any credit allowance or refund for payments previously made.

"The said Company grants me the privilege to purchase all goods hereby received, before the termination of this lease, by paying in cash the full valuation of same, in which case credit will be allowed for all payments previously made on this lease.

"I hereby acknowledge the receipt of a copy of this lease and that statement of goods is correct. It is understood and agreed that this contract contains no obligation to pay money either for the price or rental of said goods, and that any default in or failure to pay said rent shall only entitle the lessor under this contract to retake said property.

"HERNDON'S INC

"By Agent G. C. Herndon (G. C. Herndon) (Lessee's Signature) Robert Nelson (Robert Nelson)."

The return admits the allegations of the petition.

The case is submitted on the petition, the return and a stipulation of facts. The stipulation is as follows:

"That Herndon's Inc., is a licensed retail furniture store and pursues the occupation of selling and delivering retail furniture; that on the 30th day of August, A.D. 1933, Herndon's Inc., contracted with Robert Nelson to sell him a rocking chair for the price of Three Dollars and Fifty Cents ($3.50); that the said Robert Nelson was to pay as the initial payment on said chair the sum of fifty cents and was to pay the sum of fifty cents on the first day of each month thereafter; that when the sum of Three Dollars and Fifty Cents ($3.50) had been paid the said Robert Nelson would become the unconditional owner of said property; but until the purchase price had been paid in full the said Herndon's Inc., would be the owner of the title to said property; that for the purpose of protecting the credit extended, the said Herndon's, Inc., procured the said Robt. Nelson to execute the lease contract which is made a part of this controversy; that no documentary stamp was affixed to said contract by the said Robert Nelson, nor was it affixed by any other person, and that the said Robert Nelson wilfully issued the said lease contract to the said Herndon's Inc., and that by virtue of the premises aforesaid no documentary stamp tax has been paid to the State of Florida on said lease contract;

"That said transaction occurred in Leon County, Florida, and that by virtue of this transaction the said Herndon's Inc., and the said Robert Nelson evaded the payment of a documentary tax which they would have been required to pay if the standard form of retain title contract generally in use had been utilized by these parties."

Under the statute the stamps are required "On promissory notes, non-negotiable notes, written obligations to pay money, assignment of salaries, wages or other compensation, made, executed, delivered, sold, transferred or assigned in the State of Florida and for each renewal of the same on each $100.00 of the indebtedness or obligation evidenced thereby, 10c. Mortgages which incorporate the certificate of indebtedness, not otherwise shown in separate instruments, are subject to the same tax at the same rate."

Section 3836, R. G. S., 5724, C. G. L., provides as follows:

"All deeds of conveyance, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages."

In Hull, et al., v. Burr, 58 Fla. 432, 50 So. 754, this Court said:

"Section 2494 of the General Statutes of 1906, providing that 'all deeds of conveyance, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instruments be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages,' is quite comprehensive in its scope, and should be liberally construed in order to carry out the legislative intent.

"An instrument must be deemed and held a mortgage, whatever may be its form, if, taken alone or in connection with the surrounding facts and attendant circumstances, it appears to have been given for the purpose or with the intention of securing the payment of money; and the mere absense of terms of defeasance cannot determine whether it is a mortgage or not."

In Connor, et al., v. Connor, et al., 59 Fla. 467, 52 So. 727, this Court repeated the above statement and said further:

"Under the statutes of this State a mortgage acquires only a specific lien on the property of another described in 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,' may upon its face convey title to property, 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."

In Pittman v. Milton, 69 Fla. 304, 68 So. 658, this Court held:

"Under the statutes of this State a mortgage acquires only a specific lien on the property of another described in 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,' may upon its face convey title to property, 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.

"If an instrument is a mortgage when executed, its character does not afterwards change, for 'once a mortgage always a mortgage' is a maxim of the law.

"Where an agreement that a conveyance is not a mortgage, but an absolute conveyance, is wholly inconsistent with the facts of the case, such agreement does not make absolute a conveyance that under the statute may be shown to have been executed 'for the purpose and with the intention of securing the payment of money.' "

Now, the instrument set out in the affidavit, taken in connection with the stipulation of facts, shows conclusively that there was a conditional sale and purchase of the rocking chair described in the written instrument and that the instrument, while purporting to be a lease, was in fact a paper writing taken to secure deferred payments incident to the purchase of the chair. The chair and its value are named in the instrument. The chair is to remain the property of the vendor until the amounts agreed to be paid as rentals equals the amount of the value stated. The rentals or installments are to be paid on the 30th day of each month after date of the instrument. There is no term or lease mentioned, but it is provided that the chair may be purchased by the payment of the rentals in the aggregate amount equal to the value named. Until the rentals paid equal the value fixed, the title to the property remains in the vendor and so remains to secure the payment of the rentals which in time will equal and constitute the purchase price of the property.

It appears to us that by the terms of this written instrument the amount of the indebtedness which must be paid before the property becomes vested in the vendee is incorporated in the instrument and is not otherwise shown in a separate instrument. Therefore, we hold it to be a mortgage which incorporates the certificate of indebtedness not otherwise shown in a separate instrument and it is subject to the provisions of Chapter 15787, Acts of 1931, in requiring the placing of documentary stamps evidencing the payment of a documentary tax thereon.

This concludes the sole question presented in the case and, therefore, the petitioner should be remanded to the custody of the respondent to be dealt with according to law. It is so ordered.

Petitioner remanded.

WHITFIELD, ELLIS and TERRELL, J. J., concur.

DAVIS, C. J., dissents in part and concurs in part.

BROWN, J., dissents.