Booth v. Bobbitt

• Decision Date: 19 October 1927
• Citation: 114 So. 513,94 Fla. 704
• Parties: BOOTH et al. v. BOBBITT et ux.
• Court: Florida Supreme Court

114 So. 513

94 Fla. 704

BOOTH et al. v. BOBBITT et ux.

Florida Supreme Court, Division A.

October 19, 1927

Suit by F. H. Bobbitt and wife against Gertrude S. Booth administratrix of the estate of John F. Snelson, deceased and others, for specific performance. From an order overruling defendants' demurrer to complainants' amended bill, defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Remedy by specific performance is mutual; that vendor, asking specific performance, seeks, in substance, to enforce payment of specific sum of money, does not affect his right. The remedy of specific performance is mutual, and, where the remedy is sought by the vendor, it makes no difference that the relief he seeks thereby is, in substance, to enforce the payment of a specific sum of money.

In action for specific performance of land sale contract purchaser's personal representative and heirs are proper parties defendant. In an action by vendors to enforce against the vendee's personal representative and heirs at law a contract for the purchase of land, the vendee's personal representative is properly made a party, since it is his duty to make the payment, and the heirs at law or devisees of the vendee are proper defendants, since the conveyance is to be made to them.

Vendor's tender of deed required by contract is generally prerequisite to suit for specific performance, except on showing valid excuse; where deed is to be delivered on payment of purchase price, vendor's tender of deed required by contract is prerequisite to suit for specific performance; even where deed is to be delivered on payment of purchase price, tender thereof may be conditional on payment of purchase price by other party. The tender of the deed by the vendor, as required by the contract, is generally a necessary prerequisite to a suit by him for specific performance unless some valid excuse is shown for failure to make such tender. This is especially applicable where the stipulations are mutual and dependent--where the deed is to be delivered upon payment of the purchase price. But such tender may be conditional upon performance by the other party of the agreement to pay the amount due on the purchase price.

Where vendor seeks specific performance to require purchaser to pay balance due, prayer that on failure to do so execution be issued against defendant for balance found due is usually appropriate. Where the vendor seeks to require the vendee to specifically perform the contract by paying the balance due thereon, a prayer that, upon failure to do so, execution be issued against the defendant for the amount of the balance found to be due, is usually appropriate. Appeal from Circuit Court, Alachua County; A. V. Long, Judge.

COUNSEL

E. G. Baxter, of Gainesville, for appellants.

W. T. Martin, of Tampa, and J. C. Davant, of Clearwater, for appellees.

OPINION

BROWN J.

This is a bill brought by the vendors against the vendee's administratrix and heirs at law to enforce a contract for the purchase of certain lands. The defendant administratrix and the adult heirs at law demurred to the bill as amended. This demurrer was overruled. From the order overruling the demurrer, the defendants have taken this appeal. The only grounds of demurrer which, in our opinion, merit any consideration are those regarding the propriety of the parties defendant, the question of adequate remedy at law, the sufficiency of the tender made by the vendors to the defendants, and the propriety of the relief prayed.

A part of the purchase money had been paid by the vendee as provided in the contract, and then there was a default for considerably more than 60 days in the payment of the balance, and, taking advantage of an acceleration clause in the contract, the vendors elected to declare the full amount of the balance of the purchase money due and payable notifying the administratrix in writing of such election, and on the same date making claim in writing against the estate of the vendee for the payment of the remaining note with interest; such claim being filed within the time required by our statute of nonclaims. The bill further alleged that the vendors had tendered a good and sufficient warranty deed in fee simple, together with an abstract, to the administratrix, in accordance with the terms of the contract as regarded the making of such tender to the vendee, and had offered to deliver same upon the payment of the said note with interest, and the bill goes on to allege that complainants 'do here and now offer and tender to deliver said deed and to furnish said abstract upon the payment of said note and interest, costs, and attorney's fees, as provided in said contract and note, which said deed and abstract are deposited in the registry of the court,' etc. The prayer of the bill is that the defendants be required to carry out the terms and conditions of the said contract, and to accept and receive the said deed of complainants so offered and tendered, and that an accounting be had between the complainants and said administratrix as to the amount due upon said note, both principal and interest, and attorney's fees, and amounts paid by complainants for taxes and other...