Denco, Inc. v. Belk

• Decision Date: 14 May 1957
• Citation: 97 So.2d 261
• Parties: DENCO, Inc., a Florida corporation, Petitioner, v. William B. BELK, Respondent.
• Court: Florida Supreme Court

Page 261

97 So.2d 261

DENCO, Inc., a Florida corporation, Petitioner, v. William B. BELK, Respondent.

Supreme Court of Florida.

May 14, 1957.

On Rehearing Oct. 9, 1957.

Holland, Bevis, McRae & Smith, Bartow, and Farish & Farish, West Palm Beach, for petitioner.

Paty, Downey & Daves, West Palm Beach, for respondent.

Certiorari denied.

On Rehearing.

DREW, Justice.

On October 15, 1950 J. W. Richbourg leased lots 1, 2 and 3, block 3, Palm Beach North, an addition to West Palm Beach, Florida, to William B. Belk for a ten year term commencing October 15, 1950, for a total rental of $9,000 payable in installments of $75 per month. The lease contained a covenant on the part of the lessee that he would construct certain buildings upon the premises within a designated period of time and pay the cost thereof. The lease then further provided as follows:

'The parties hereto further agree that in event lessor, his heirs, administrators and assigns, desire to sell the aforesaid premises during the term of this lease, they shall so advise lessee in writing and shall give to said lessee the minimum figure at which said property is to be sold, and the said lessee shall be given twenty days from the date of such written notice within which to accept or reject such offer, and in the event the lessee rejects such offer, and the lessor, his heirs, administrators or assigns shall thereafter sell said property to some third party, who desires immediate possession of said premises and cancellation of said lease, said lessee agrees to surrender possession of said premises, and cancellation of lease, after three months notice, provided, lessor, his heirs, administrators or assigns shall pay to lessee within the said three months, that portion of the cost of the aforesaid buildings as represents the unexpired portion of lease less four per cent per annum as depreciation of said buildings, that is to say, if total cost of buildings be $5,000 and property is sold and possession delivered by lessee at expiration of one year, from date of lease, there is to be deducted 4% of $5,000 representing the cost of said buildings, or $200; that from the true valuation of $4,800 remaining, a deduction of 1/10 of said amount to be made, or $480, which would leave the total amount to be paid lessee $4,320; that the same procedure shall be followed in event of sale at expiration of any period during the terms of this lease, based upon the true cost of improvements.

'It is further agreed that all buildings or other construction of a permanent nature placed upon said premises shall become a part of the realty and upon termination of this lease shall become the property of lessor.'

About two years after the lease was entered into the lessor died and sometime afterward an executor was appointed for his estate. Notice to creditors was duly published, the first publication being on the 14th day of November, 1952.

The lessee Belk constructed the buildings which he had covenanted in the lease to construct and continued in the possession of said premises as lessee without interruption during the course of the administration of the estate and until the present time. The record is silent as to whether the rent on the premises during the course of the administration of the estate was paid to the executor but we must assume that such state of facts did exist.

On June 29, 1956 the executor of the estate of J. W. Richbourg, the lessor, and all of the beneficiaries of the estate of John W. richbourg, deceased, conveyed the lands described in the aforesaid lease (and other lands) to Denco, Inc., a Florida corporation, for a recited consideration of $67,000. The deeds of both the executor and the beneficiaries of the estate describe the identical lands covered in the lease aforesaid to Belk followed by the following language 'subject to all existing leases with person or persons in possession and subject to all taxes and assessments subsequent to the year 1955, all easements, restrictions and reservations of record and zoning ordinances of the City of West Palm Beach, Florida.' Shortly after this conveyance the lessee, Belk, filed his complaint against the executor of the estate and Denco, Inc., a Florida corporation, the grantee in the deed from the estate and the heirs, in which he recited the execution of the lease above referred to, the provisions contained in said lease with reference to the option of the lessee to buy in the event of a sale, which is contained in the quoted paragraph above, and that the lessee Belk the complainant, was in possession of the property as such lessee at all times subsequent to the date of said lease and had fully and completely complied with and abided by all of the terms and conditions imposed therein. The complaint recited the sale of the lands to Denco, Inc., alleged the same to be in violation of his rights under the lease and prayed that the conveyance be declared null and void as to the lands embraced within the lease and that the executor 'be ordered to notify plaintiff in writing the price for which the above described property was sold or to notify plaintiff in writing the minimum figure for which said property could have been sold on July 24, 1956.' A motion to dismiss this complaint was made and sustained by the trial court in an order in which he expressed the view 'that no claim can be made against the Executor unless notice thereof has been filed within the time prescribed by the Statute of non-claim. * * * Plaintiff may have a cause of action, however, against a purchaser with notice, and under appropriate circumstances, the Executor would be a proper party defendant to the suit.' An amended bill of complaint was thereupon filed containing substantially the same allegations as the original complaint but eliminating as a defendant the executor of the estate. The prayer in the amended complaint was that the court determine the value of the property covered by the lease (it having been included with other lands without a specific price being fixed on it) and that upon such determination being made 'the court afford Plaintiff an opportunity to purchase the property described * * * for such sum, and in the event Plaintiff elects to so purchase said property that the court order Defendant to convey said property to Plaintiff upon such terms and conditions as the court may deem proper.' A motion was made to dismiss the amended complaint on the ground that it stated no cause of action upon which relief could...