## Facts

- McCaffrey, a beer distributor, owed Drewrys Limited, U.S.A., Inc. more than $20,000 and had tendered dishonored checks.
- After Drewrys halted shipments, the parties restructured the debt: McCaffrey gave Drewrys a $10,000 demand note secured by a real estate mortgage dated June 30, 1950, plus additional notes secured by chattel mortgages for the balance.
- A contemporaneous writing stated Drewrys would “forbear for the time being” from enforcing collection, conditioned on McCaffrey making payments as provided.
- No definite duration of forbearance was specified; testimony characterized any delay in suit as indefinite and dependent on McCaffrey’s business prospects.
- Before taking its mortgage, Drewrys searched the public records and found no recorded liens on the property.
- Gabel already held a March 14, 1950 mortgage on the same property securing a $2,750 debt but did not record it until after Drewrys recorded its June 30, 1950 mortgage.

## Issues

1. Whether a mortgage taken to secure an antecedent debt is supported by sufficient new, contemporaneous consideration when the mortgagee’s asserted consideration is an indefinite promise to forbear suit.
2. Whether, without such consideration, the subsequent mortgagee qualifies as a purchaser for value entitled to priority over a prior unrecorded mortgage under the recording system.

## Decision

- The Florida Supreme Court reversed the foreclosure judgment that had declared Drewrys’ mortgage superior to Gabel’s.
- The court held that Drewrys’ promised forbearance was too indefinite to constitute new, contemporaneous consideration.
- Because Drewrys was not a purchaser for value, it could not claim recording-act priority over Gabel’s earlier mortgage despite Drewrys’ lack of notice and earlier recording.

## Legal Principles

- A mortgagee is treated as a purchaser for value only if, contemporaneous with the mortgage, the mortgagee parts with something of value, surrenders an existing right, incurs a fixed liability, or sustains a definite legal detriment.
- Taking a mortgage solely to secure a pre-existing debt, without new contemporaneous consideration benefiting the mortgagor or burdening the mortgagee, does not confer purchaser-for-value status.
- An indefinite, discretionary promise to “forbear for the time being” is not a sufficiently definite surrender of rights or fixed detriment to serve as the necessary new consideration for recording-act protection.

## Conclusion

A mortgage securing an antecedent debt does not gain priority as a subsequent recorded interest unless supported by definite new consideration; an open-ended promise to delay enforcement does not make the mortgagee a purchaser for value, so a prior unrecorded mortgage retains priority.


Gabel v. Drewrys Ltd., U.S.A., Inc., 68 So. 2d 372 (Fla. 1953)