Condrey v. Condrey

• Decision Date: 30 January 1957
• Parties: Chase L. CONDREY, Jr., and Frieda H. Condrey, his wife, Appellants, v. Chase L. CONDREY, Sr., and Mamie H. Condrey, his wife, Appellees.
• Court: Florida Supreme Court

Page 423

92 So.2d 423

Chase L. CONDREY, Jr., and Frieda H. Condrey, his wife, Appellants, v. Chase L. CONDREY, Sr., and Mamie H. Condrey, his wife, Appellees.

Supreme Court of Florida, Special Division B.

Jan. 30, 1957.

Charles V. Silliman, Orlando, for appellants.

Walter E. Smith and S. Victor Tipton, Orlando, for appellees.

O'CONNELL, Justice.

Chase L. Condrey, Jr. and his wife, the appellants here, filed a suit to partition certain lands in Orange County owned by them as tenants in common with his parents Chase L. Condrey, Sr. and his wife, who were defendants below and appellees here.

The appeal is from a final decree in which the chancellor denied plaintiffs' prayer for partition and also denied the defendants' prayer for specific performance of an alleged agreement whereunder plaintiffs were to support the defendants for their lifetime.

The facts necessary to be detailed follow.

In 1940 Condrey, Sr., defendant with his wife, invited plaintiffs, Condrey, Jr. and his wife, to live in a single family residence on the rear of their property. The defendants then occupied a residence on the front of the same property. The son moved in and at his own expense converted the rear house into a duplex. He lived in one unit and with his father's permission collected the rents from the other unit in the duplex. In 1948 both parents became disabled by separate accidents; the son and his wife moved into the front house with the parents and collected the rental from both units of the duplex and in turn contributed to the living expenses of the defendants. The four parties alleged that for some time they discussed what should be done. The son had invested several thousand dollars in the property and the parents were unable to contribute towards such expenses or even much towards everyday living expenses. Plaintiff had two sisters who although not immediately involved were at least potential threats to his investment should his parents die and the land pass by the law of descent to the plaintiff and his sisters. A lawyer was engaged in September of 1949 and the defendants conveyed the land to the lawyer and his wife who in turn conveyed the property to both plaintiffs and both defendants as tenants in common 'with right of surviorship'.

The deed in question contained no provision concerning either an agreement for support nor an express provision against partition of the land. Nor was there any separate written agreement covering either matter.

The four parties continued to live together in the front house until December 6, 1953; the plaintiffs collected and used the rentals and paid all household expenses, providing defendants with clothing and care. Additional sums were paid by plaintiffs on the property for insurance, taxes, repairs, and improvements.

In December 1953 the plaintiffs moved out of the front house and off the property because of family differences. The collected no more rental except for one sum of $112, which was placed in escrow pending the outcome of the petition for partition which they filed. They expended no more funds on their parents nor on the property.

The defendants in their answer affirmatively prayed for relief, asking for specific performance of an alleged oral agreement for lifetime support, which the alleged was the consideration for their having brought about the creation of the tenancy in common with right of survivorship. The lower court denied the petition for partition and the counterclaim for specific performance of the agreement for lifetime support which the court found to have been a substantial part of the consideration for the conveyance which created the tenancy in common under which plaintiffs claim the right to partition.

Defendants filed cross-assignments of error to the final decree. In their brief before us they raise only one question. We will dispose of it first.

In their question the defendants contend that the court erred in not exercising its general equity power to set aside the conveyance to the four parties and to then give plaintiffs a lien on the property for the amount of value of improvements made by them.

This question is easily disposed of. It is raised before us for the first time. It was not relief prayed for by the defendants either in the pleadings or elsewhere in the record, so far as we can see. We reject this contention for the reason above expressed.

Plaintiffs raise three questions for us to decide. They contend that: (1) as tenants in common they are entitled to partition as a matter of right; (2) the evidence in this case does not establish an oral agreement not to partition the lands involved; and (3) an oral agreement not to partition is unenforceable under the Statute of Frauds.

On the plaintiffs' first question there is no doubt that the law favors the right to partition. And the general rule is that partition is a matter of right. Willard v. Willard, 145 U.S. 116, 12 S.Ct. 818, 36 L.Ed. 644. 68 C.J.S., Partition, § 44.

But there are exceptions to the rule. The right to partition may be waived, or one may be estopped to enforce the right by an agreement not to partition either express or implied. Forehand v. Peacock, Fla.1955, 77 So.2d 625; Martin v. Martin, 1897, 170 Ill. 639, 48 N.E. 924; Odstrcil v. McGlaun, Tex.Civ.App.1950, 230 S.W.2d 353; Rowland v. Clark, 1949, 91 Cal.App.2d 880, 206 P.2d 59. 68 C.J.S., Partition, § 44.

In the case of Forehand v. Peacock, supra, this Court held that an agreement purporting to create an estate in property by entireties between mother and daughter could not create such an estate, but was sufficient to create an agreement not to patition property and to vest title thereof in the survivor. In that case this Court observed that agreements not to partition could be made and would be binding on the parties,...