Allen v. Bowman
| Decision Date | 26 January 1943 |
| Citation | 152 Fla. 325,10 So.2d 905 |
| Parties | ALLEN v. BOWMAN. |
| Court | Florida Supreme Court |
Rehearing Denied Feb. 10, 1943.
Appeal from Circuit Court, Dade County; George E. Holt judge.
Hyzer & Padgett, Inman Padgett, and T. H. Teasley, all of Miami, for appellant.
James M McCaskill, of Miami, for appellee.
Appellant sues to compel the return of a down payment made to appellee under an executory contract to purchase certain building lots, which both parties understood were to be used for a hotel site; and to cancel and rescind the contract. By the terms of the contract, seller agreed to furnish an abstract showing his title to be 'good and marketable and/or insurable' and appellant agreed to consummate the purchase within a specified time thereafter, or forfeit his down payment. If title was found not to be 'good and marketable and/or insurable', appellee agreed to make it so within a specified time; otherwise the contract was to become null and void, and the down payment returned.
[152 Fla. 326] Paragraph 3 of the contract provided that the property shall be sold and purchased subject to the zoning ordinances of the Town of Surfside, 'but with the understanding that all deed restrictions pertaining to this property have been removed or rendered ineffective, and that the property is now zoned for hotel and apartments, which buildings shall not exceed three (3) stories in height.'
Upon examination of the abstract by appellant's attorneys, certain deed restrictions upon the use of the property, which had been imposed by the original developers of the subdivision, were found. These existing restrictions, ten in number, restricted the use of the lots to residences only, prescribed conditions governing the erection and location of buildings thereon, and prohibited the sale, lease or rent of said lots to persons not of the Caucasian race, or to firms or corporations in which any such persons were members or shareholders.
Upon appellee's failure to clear the record of the restrictions within the time specified in the contract, or to return the down payment, appellant brought suit to rescind and cancel the contract and recover the monye paid; alleging the existence of the restrictions, and that they had not been removed or rendered ineffective within the meaning of the contract.
In due time appellee answered admitting the existence of the restrictions as a matter of record but alleging that they had been rendered ineffective as a matter of fact by numerous and sundry violations thereof by other lot owners in the subdivision resulting in a complete change in the character of the neighborhood from residential to business...
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Alexander v. Cleveland
...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......
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Hurley v. Werly, 7130
...that real property titles are never insured except upon record evidence. The Supreme Court has recognized this. In Allen v. Bowman, 1943, 152 Fla. 325, 10 So.2d 905, the Court 'When appellee agreed to furnish an abstract showing 'good and marketable and/or insurable title', he agreed to sho......
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Boulware v. Mayfield, W--34
...matters in pais to support its validity.' (Alexander v. Cleveland, Sup.Ct.Fla.1955, 79 So.2d 852, 854; see also Allen v. Bowman, Sup.Ct.Fla.1943, 152 Fla. 325, 10 So.2d 905) Thus, had this case involved a suit for specific performance by the seller in which the buyer asserted as a defense t......