Dixon v. Clayton

• Decision Date: 18 November 1949
• Citation: 44 So.2d 76
• Parties: DIXON v. CLAYTON et vir.
• Court: Florida Supreme Court

Page 76

44 So.2d 76

DIXON v. CLAYTON et vir.

Supreme Court of Florida, Special Division A.

Nov. 18, 1949.

Rehearing Denied Jan. 13, 1950.

Burton G. Henson and John S. Berry, Tampa, for appellant.

Mabry, Reaves, Carlton, Anderson, Fields & Ward, and Marvin Green, Tampa, for appellees.

THOMAS, Justice.

The appellant undertook to buy, for the alleged sum of $150, a track of land owned by a married woman who accepted a part of the purchase price, put him in possession, and alone signed this simple memorandum:

'Received of Frank Dixon $20.00 deposit on strip about 3/4 acre back of Hampton Garage. 163.00, 249.42'

The numerals on the margin were the dimensions of the property. This was 2 March, 1948. Later she repudiated the agreement and offered to return the payment. He, in turn, tendered the remainder of $130 in a suit to enforce the woman and her husband to convey. The chancellor granted a motion to dismiss the bill.

The question then and now is whether an executory contract for the sale of separate property of a married woman, not signed by her husband, is specifically enforceable, a part of the purchase price having been paid and the buyer having been placed in possession.

To support his position that the court erred, the appellant relies mainly upon our decision in Clark & Lewis v. Gardner, 91 Fla. 1059, 109 So. 192, and the 'Florida Emancipation Act of 1943 as amended May 27, 1947,' and asserts that his bill was dismissed because of an earlier case decided by this court, Goss v. Furman, 21 Fla. 406. The gist of the first of these is, simply, that an oral agreement for the conveyance of land may be specifically enforced if the purchaser has paid part of the purchase price and has been put in possession. Of like effect were the rulings in Demps v. Hogan, 57 Fla. 60, 48 So. 998, and Taylor v. Mathews, 53 Fla. 776, 44 So. 146. In the latter, the court was at pains to point out that the question of compensation to the buyer if the wife eventually declined to execute the deed was not decided.

These decisions were doubtless prompted by a determination on the part of this court, and often expressed by others, that the Statute of Frauds, designed to prevent fraud, should not be employed as an instrument of fraud so that one who relied on a contract and partly performed it, with consent or acquiescence of the property owner, would not be thwarted in an effort to obtain specific performance on the ground asserted by the latter that the contract was not in writing. So if a man agrees to sell his property to another, whom he places in possession and from whom he accepts a part of the purchase price, he cannot avail himself of the Statute of Frauds to defeat a suit for specific performance, for if he is successful he will have committed a fraud upon the buyer by at once benefiting from the agreement and escaping responsibility under it.

These pronouncements, insists appellant, considered with Section 708.07, Florida Statutes 1941, and F.S.A., as amended by Chapter 23820, Laws of Florida, Acts of 1947, and with Section 708.08, Florida Statutes 1941, and F.S.A., empower the court to enforce the contract here involved. Historically, Section 708.07 is the same, verbatim, as Section 2076 of The Revised Statutes of the State of Florida 1892 and Section 2594 of The General Statutes of the State of Florida 1906.

We are now asked to apply the principle where a married woman without the joinder of her husband attempts to sell her separate property, accepts from the buyer a part of the purchase price, and admits him to possession of the land. It may well be that from a...