B. W. B. Corp. v. Muscare, 76-1138
| Decision Date | 06 July 1977 |
| Docket Number | No. 76-1138,76-1138 |
| Citation | 349 So.2d 183 |
| Parties | B. W. B. CORPORATION et al., Appellants, v. Joseph B. MUSCARE et al., Appellees. |
| Court | Florida District Court of Appeals |
Robert M. Brake, Coral Gables, for appellants.
Charles A. Gould, Jr., Miami, for appellees.
Before HAVERFIELD, NATHAN and HUBBART, JJ.
Appellants, William S. Barkett, Sr., Eloise J. Barkett and B.W.B. Corporation are defendants in a suit by attorneys for services rendered defendants in a quiet title action. Appellants, as defendants therein, had filed a third party complaint against Joseph P. Muscare and Helen F. Muscare alleging that the Muscares had sold and conveyed to them the real property involved in the quiet title suit, at which time the Muscares concealed an unrecorded outstanding contract for sale of the property to a third party. Thus, appellants alleged that it was the Muscares responsibility to pay the attorneys and costs of the quiet title suit. A judgment for attorney's fees and costs was entered against appellants. This appeal is from a jury verdict and judgment in favor of the Muscares on appellants' third party complaint.
The essential facts are not in dispute. In September of 1966, the Muscares leased the property to Tropicana Country Club, Inc., for one year, with an option to purchase the property, which option and lease were recorded. In March of 1967, Tropicana exercised the option and the Muscares and Tropicana signed a contract of purchase and sale which was not recorded. The transaction was never closed. Tropicana subsequently vacated the property, with neither party signing a release. In November of 1969, the Muscares conveyed the property to appellants by warranty deed. At the closing, the Muscares signed an affidavit which stated:
"(T)he above-described property is free and clear of all liens, taxes, encumbrances and claims of every kind, nature and description whatsoever, except for mortgages, if any, described in the Deed given between the parties named herein, and except for real estate and personal property taxes for the year 1969."
Shortly after the purchase, appellants applied for a mortgage loan, at which time the title company advised appellants concerning the cloud on their title. A second affidavit was thereafter executed by the Muscares wherein it was stated that the option to purchase had never been exercised by the country club.
Appellants first contend that since the Muscares executed affidavits stating that the subject property was free and clear of all encumbrances and that Tropicana Country Club could not and would not exercise its option to purchase the property, these statements were a fraud on appellants and therefore appellants were entitled to a judgment as a matter of law. Appellants next contend that since the Muscares breached the covenants contained in the warranty deed, the court should have directed a verdict at the close of all the evidence. We agree with this second argument.
The Muscares gave appellants a warranty deed which is...
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