Andrew v. Hecker

• Decision Date: 14 June 1938
• Citation: 132 Fla. 759,182 So. 251
• Parties: ANDREW v. HECKER et al.
• Court: Florida Supreme Court

182 So. 251

132 Fla. 759

ANDREW v. HECKER et al.

Florida Supreme Court

June 14, 1938

Bill in the nature of a bill of review by C. H. Hecker, Jr., against Jess C. Andrew and another. From an adverse order and an adverse decree, Andrew appeals.

Affirmed. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

C. C Youmans and John M. Murrell, both of Miami, for appellant.

Richard H. Hunt and George H. Salley, both of Miami, for appellees.

OPINION

BUFORD Justice.

This appeal is from an order denying a motion to dismiss the bill in the nature of a bill of review, and from the final decree granting the relief prayed for in that bill.

Jess C Andrew and Elizabeth Fowler Andrew, his wife, owners of the land in question, and C. H. Hecker, Jr., prospective purchaser of the land, entered into a contract on September 23, 1935, wherein it was recited that the parties thereto had previously, on May 20, 1935, entered into a contract for the sale of 'that portion of lot 19, Block 8, Mid Golf Subdivision * * * lying between 40th Street, 41st Street, Prarie Avenue and that portion of Chase Avenue which has recently been cut through Lot 19', for a price of $40,000, $15,000 to be paid in cash, and the remainder to be paid in equal payments due one and two years from date of closing; but since the date of said agreement the parties thereto have discovered that the original deed from the developer of the subdivision, the Miami Beach Bay Shore Co., to Jess C. Andrew, dated July 17, 1933, contains restrictions, including the following:

'(3) The construction or erection of buildings on the real estate herein conveyed is limited to one one-family dwelling and one private garage. * * *'

'(5) No residence, dwelling house or house commonly known as a double or two-family dwelling house, apartment or apartments, and no house, structure or building to be used as a business room * * * or for any other business or commercial purposes whatever, shall be constructed, erected or placed on any of the lots situate in said Subdivision; nor shall any store * * * be constructed, erected or placed on any of the lots situate in said subdivision; nor shall any business or commercial enterprise whatever be operated or maintained thereon. * * *'

'10. * * * Provided, However, that permission is hereby granted to subdivide Lot 19, of Block 8, of this subdivision, provided that the grantee, his heirs or assigns, will convey the property with the same conditions, restrictions and limitations as apply to the rest of the property in Block 8, of this subdivision.'

That the parties in executing the first contract of sale intended and understood that said property was free from said restrictions set forth above, and have agreed that suit be brought in the name of the sellers by Copeland and Therrell, as attorneys, for the purpose of clearing title to said property from the effect of those restrictions; that C. H. Hecker, Jr., has heretofore deposited $4,000 in escrow with the Miami Beach First National Bank to be held by it as part of the purchase price until the closing of the deal.

The contract, after reciting these facts, provided that the party of the first part agrees to sell to the party of the second part and the latter agrees to purchase from the former, said described lot upon these terms and conditions: (1) 'That a suit brought by Copeland and Therrell in the name of the first parties and as their attorneys, is successful in clearing the said property from the effect of said restrictions * * *, in which event this contract of sale shall be closed and if such suit is not successful in clearing the property of the said restrictions, this agreement between the parties hereto for the purchase and sale of the said property shall be null, void and of no effect'; (2) payment by the purchaser to Miami Beach First National Bank as escrow agent of $11,000, which with the $4,000 heretofore deposited shall constitute the cash payment; (3) the purchaser shall execute to the seller two notes for $12,500 each, due in one and two years from date of closing; (4) 'that the date of closing of this purchase and sale shall be upon the entry of a final decree of a Court of competent jurisdiction removing the above set forth restrictions from the said property and the expiration of the date of a right of appeal from said decree;' (5) that the deposit of $4,000 now held in escrow will remain on deposit with the Miami Beach First National Bank pending the closing of the sale, and in the event the suit is unsuccessful, the deposit is to be returned to the purchaser. The contract provided that the first $1,000 of costs and expenses of the suit to remove restrictions is to be paid by the purchaser, and all above that amount is to be paid equally by the purchaser and the seller. The contract provided that closing the sale is conditioned upon the seller delivering a good and marketable title as of that date free and clear of the restrictions set out above, and free and clear of all encumbrances except: (1) current taxes for the year of the date of closing; (2) the restrictions contained in the deed from Miami Beach Bay Shore Co. to Jess C. Andrew, dated July 17, 1933, other than those heretofore specifically set forth, which are to be removed by court action prior to closing the sale; (3) and any and all zoning ordinances affecting the property as of the date of closing with any amendments thereto. The contract provided that the property was to be conveyed by full and sufficient full covenant warranty deed; that the escrow agent is to pay a broker's commission of $2,000 to the office of Walter B. Wilson; that this contract supersedes that executed on May 20, 1935. The remainder of the contract provided for the payment of the money held by the escrow agent.

On December 16, 1935, Jess C. Andrew filed his bill against certain named defendants to remove, as a cloud on the title, the restrictions on the use of said land. Decrees pro confesso were taken against all parties except the Miami Beach Bay Shore Co., which filed an answer denying knowledge of the matters set forth in the bill of complaint, and William H. Bishop, who filed a motion to dismiss the bill, which motion the court thereafter sustained. The court thereafter, pursuant to petition for rehearing, permitted Jess C. Andrew to file an amended bill of complaint, which was done on October 31, 1936.

Subsequently, on February 4th, 1937, upon further hearing on the motion to dismiss as applicable to the amended bill of complaint, the court entered its order, which is in part as follows:

'It is therefore further ordered, adjudged and decreed by the Court that the said written motion to dismiss bill of complaint in this cause be and the same is hereby granted and sustained for want of indispensable parties defendant and plaintiff is hereby allowed 10 days from the date of this order to amend bill of complaint or file amended bill of complaint if he so desires and in the event of the failure of plaintiff to so amend within the time hereby allowed the bill of complaint in this cause shall stand dismissed by this order.'

Thereafter, on May 19, 1937, C. H. Hecker, Jr., the purchaser under the contract of sale filed his petition for leave to intervene as a party plaintiff, which petition the court denied in this language:

'It is thereupon considered, ordered, adjudged and decreed that said petition for leave to intervene be and the same is hereby denied, but it appearing unto the Court that the right of the petitioner on the facts as set forth in said petition have been affected by the final decree of the 4th day of February, 1937, and that he has not been heard before this Court relative thereto, and that there is privity between the plaintiff herein and the petitioner now before the Court, and that the petitioner's proper remedy is by a bill in the nature of a bill of review (see Woodward v. Woodward, 95 Fla. 396, 116 So. 501; In re Newkirk, 114 Fla. 552, 154 So. 323; Miami Bank & Trust Co. v. Mahlstedt, 107 Fla. 282, 144 So. 659 and Fletcher's Equity Pleading & Practice, 1020 et seq.); it is thereupon

'Ordered, adjudged and decreed to the extent that leave of Court be necessary or appropriate for filing a bill of review or a bill in the nature of a bill of review, or a supplemental bill, that such leave of Court be and the same is hereby granted to the said C. H. Hecker, Jr.'

On May 27, 1937, C. H. Hecker, Jr., brought his bill in the nature of a bill of review against Jess C. Andrew and William H. Bishop, praying that the dismissal order and the order denying leave to intervene be reviewed, reversed and vacated; that plaintiff, C. H. Hecker, Jr., be given an opportunity to be heard on the matters herein alleged; and that the original chancery cause be revived against the defendants in the name of the original plaintiff therein, Jess C. Andrew, and that C. H. Hecker, Jr., be granted the right to intervene therein as a party plaintiff or that he be given permission to continue the suit in the name of Jess C. Andrew, with permission to further amend the original bill to the extent and in the manner necessary to give the court jurisdiction over the subject matter and parties to said cause so that it may be disposed of upon its merits.

The bill in the nature of a bill of review alleged substantially that C. H. Hecker, Jr., is the real party in interest, for whose sole benefit the bill to quiet title is being maintained, and has been injured by the order of dismissal of February 4, 1937, and the subsequent non-action and mala fides of said Jess C. Andrew, and has not had an opportunity to be heard; that it was impossible for C. H. Hecker, Jr., to anticipate these injuries, because Jess C....