Alexander v. Cleveland

• Decision Date: 06 April 1955
• Parties: William H. ALEXANDER and Helen H. Alexander, Appellants, v. Sally Orr CLEVELAND, Appellee.
• Court: Florida Supreme Court

Page 852

79 So.2d 852

William H. ALEXANDER and Helen H. Alexander, Appellants, v. Sally Orr CLEVELAND, Appellee.

Supreme Court of Florida, En Banc.

April 6, 1955.

Rehearing Denied May 23, 1955.

William H. Seaver, Dade City, for appellants.

Dayton & Dayton and Charlie Luckie, Jr., Dade City, for appellee.

SEBRING, Justice.

William H. Alexander and Helen H. Alexander, his wife, entered into a contract to purchase from the appellee a certain residence property, for the sum of $9,500, of which $1,000 was to be paid upon the execution of the contract, an additional $4,500 was to be paid if a deed conveying merchantable title was delivered to the buyers on or before January 1, 1953, and the remainder of the purchase price was to be payable in the future and secured by a mortgage on the property.

By the terms of the contract the seller agreed with the buyers as a condition to the sale that the seller would furnish to the buyers 'an abstract of title * * * showing good merchantable title' and further agreed 'In event merchantable title cannot be conveyed prior to January 1st, 1953 * * * to refund said $1,000.00 on demand.' The seller furnished to the buyers an abstract which showed that the seller had acquired title from a grantor who had acquired the property by a tax deed from the State of Florida. Although we do not find a copy of the tax deed in the record, we assume that it was valid in form. However, as we understand the record, there were no entries in the abstract showing the antecedent proceedings upon which the tax deed was based.

Upon advice of their attorney the buyers refused to accept a deed to the property on the ground that the seller had failed to furnish an abstract showing good and merchantable title, as agreed, and demanded the return of the $1,000 down payment. Upon receiving notice of the refusal of the buyers to consummate the transaction, the seller offered to bring suit to quiet title to the property; but this was refused by the buyers because the seller could not give assurance that the suit would be brought to a successful conclusion by January 1, 1953, the last day on which it had been agreed by the parties that a deed conveying merchantable title would be executed and delivered. Subsequently, the buyers brought suit to cancel the contract, for the return of the down payment, and for money judgment for amounts expended by the buyers in reliance upon the agreement of the seller that the transaction would be closed and merchantable title delivered on or before January 1, 1953.

At final hearing the court below found 'that the title * * * to the lands involved * * * was * * * a merchantable title and the purchasers * * * should have accepted the same.' Accordingly, the court entered a decree for the defendant, to the effect that the plaintiffs (purchasers) had forfeited their earnest money; that the improvements made by the purchasers while in possession of the property were made at their own risk; and that the plaintiffs were entitled to no relief.

The pivotal question on this appeal is whether the furnishing of an abstract reflecting title by a bare tax deed entry constitutes a compliance with a covenant in a sales agreement 'to furnish * * * an abstract of title * * * showing good merchantable title.'

In our opinion the provision of the contract, by which the seller agreed in the alternative to convey merchantable title prior to January 1, 1953, or to refund the $1,000 down payment, does not in any respect alter or vitiate the first clause of the contract by which the seller bound herself 'to furnish * * * an abstract of title * * * showing good merchantable title.' It appears, therefore, that the court below, in finding simply that upon all the evidence the title in question was shown to be good and merchantable, did not in fact determine or dispose of the real issue in the case as to whether the seller, in addition to showing a title which was in fact good and merchantable, had furnished an abstract reflecting such title; that is to say, whether she had shown a good and merchantable title of record.

The distinction between 'a good and merchantable title' and 'a good and merchantable title of record' has been repeatedly recognized in our cases. As pointed out in Allen v. Bowman, 150 Fla. 325, 10 So.2d 905, when a seller agrees to furnish the buyer an abstract showing good and marketable title, he agrees to show by that abstract a good and marketable record title as distinguished from one that might be good in point of fact but dependent in material respects upon matters in pais to support its validity. DeHuy v. Osborne, 96 Fla. 435, 118 So. 161. See also Adams v. Whittle, 101 Fla. 705, 135 So. 152; Barclay v. Bank of Osceola County, 82 Fla. 72, 89 So. 357. From this it must be plain that the established test for determining whether or not an abstract reflects a good and marketable title of record, is whether the abstract shows affirmatively that the vendor has a marketable title of record 'free from reasonable doubt in law and fact as to its validity.' Shriner v. Fountain, 157 Fla. 698, 26 So.2d 809, 811.

In the instant case no attempt was made by the seller to have the abstract reflect any of the antecedent proceedings upon which the tax deed was based, and we do not decide whether or not such proceedings would have shown a valid title in the seller, if they had been included. What we do decide is that in view of the insecurity attached to a bare tax deed, an abstract reflecting title pased solely upon the issuance of such deed, without a showing in the...