Doyle v. Tutan

• Decision Date: 24 March 1959
• Docket Number: No. 58-395,58-395
• Citation: 110 So.2d 42
• Parties: Lena F. DOYLE, a single woman, Appellant, v. Charles B. TUTAN, John T. Grier, Charles B. Tutan, as Executor of the Estate of Lorna Higgins, deceased, and Grier Enterprises, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 42

110 So.2d 42

Lena F. DOYLE, a single woman, Appellant, v. Charles B. TUTAN, John T. Grier, Charles B. Tutan, as Executor of the Estate of Lorna Higgins, deceased, and Grier Enterprises, Inc., Appellees.

No. 58-395.

District Court of Appeal of Florida, Third District.

March 24, 1959.

Robert H. Givens, Jr., Miami, for appellant.

Rosenhouse & Rosenhouse, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

This appeal, from an order dismissing the appellant's equity suit, presents for determination the question of whether the complaint stated a cause of action.

Appellant had purchased the property involved here from Grier Enterprises, Inc., during the pendency of a suit against the latter by Charles B. Tutan as executor of the estate of Lorna Higgins, which suit resulted in a decree holding that the estate was the owner. Appellant brought this suit to avoid the effect of that decree, and to have herself declared to be the owner and to quiet her title.

The complaint and its exhibits disclosed the following facts: One Lorna Higgins, prior to her death which occurred in 1956, conveyed certain improved real estate, on which she resided, to Grier Enterprises, Inc., a corporation owned and controlled by one John T. Grier, with whom she had considerable dealings. Later, in a suit brought by Charles B. Tutan as her executor, it was found that the Grier corporation had held as trustee for Lorna Higgins. The property was subject to a first mortgage in the principal amount of $8,500 held by Coral Gables Federal Savings & Loan Association.

Lorna Higgins died April 24, 1956, leaving a will under the terms of which Charles B. Tutan was named as the sole beneficiary and executor. On the day Mrs. Higgins died, the Grier corporation made a second mortgage on the property in question, in the amount of $4,000, to Tutan in his individual capacity. In due course the Higgins will was probated and Tutan qualified as executor August 10, 1956.

On October 23, 1956, Tutan, as executor, filed the suit against Grier and the Grier corporation, claiming that the Grier corporation had held the property as trustee for Lorna Higgins, and seeking recovery of the property and an accounting. A lis pendens was filed in connection with that suit. A motion of the defendants to dismiss was filed and remained pending and undisposed of until December of 1957.

During that period, the appellant, acting through an agent, entered into negotiations with Grier and Tutan to buy the property. She did that without knowledge on her part, or on the part of her agent, of the existence and pendency of the suit by Tutan against Grier by which Tutan, as executor, was seeking to force a reconveyance of the property to him from the Grier corporation. Appellant acquired the property subject to the first mortgage of $8,500. As a part of the transaction, which took place in March of 1957, Tutan accepted $3,300 for his $4,000 second mortgage, and appellant paid Grier $700 over the amount of the first mortgage. Appellant took possession and proceeded to pay the monthly first mortgage payments.

Tutan obtained a decree in his suit against Grier on April 28, 1958, holding that the Grier corporation held the property as trustee, and ordering the Grier corporation to reconvey the property to Tutan as executor of the estate of Lorna Higgins. Thereafter, on May 7, 1958, appellant first learned of the Tutan claim, on receipt of a letter from the attorneys for the executor, in which they took the position that the Higgins estate was the owner of the property and that appellant's purchase thereof, made during the Tutan-Grier suit, was ineffectual because of the lis pendens in that suit. ¹ The complaint included the following allegations:

'e. Thereafter, while said [Tutan-Grier] suit was pending, but without plaintiff having any knowledge of the pendency of said suit or of the claims asserted therein, plaintiff negotiated with the defendant Grier Enterprises, Inc., through her agent Walter A. West, Jr., for the purchase of said property, and on or about March 1, 1957 Grier Enterprises, Inc. agreed to sell said property to plaintiff subject to the first mortgage described in paragraph 3 above, provided plaintiff paid Grier Enterprises, Inc. $700.00 for its equity in said property over and above said first mortgage and provided plaintiff paid and satisfied the second mortgage, mentioned above, which was being held by Stanley P. Nitsche in trust for the defendant Charles B. Tutan. After reaching said agreement with Grier Enterprises, Inc., plaintiff, through her agent Walter A. West, Jr., negotiated with the said Charles B. Tutan to determine how much he would accept in full payment of said second mortgage if plaintiff purchased said property from Grier Enterprises, Inc., and on or about March 9, 1957 the said Charles B. Tutan agreed to accept $3300.00 from plaintiff in full payment of said second mortgage if plaintiff purchased said property from Grier Enterprises, Inc.

'f. Pursuant to the agreements described in sub-paragraph e, plaintiff, through her said agent, paid $3300.00 on March 9, 1957 to the defendant Charles B. Tutan, who accepted said sum of money from plaintiff's agent in full payment of said second mortgage knowing that said sum of money constituted part of the consideration which plaintiff was paying for the purchase of said property from Grier Enterprises, Inc.; and upon payment of said money to him the said Charles B. Tutan delivered to plaintiff's agent a satisfaction of said mortgage, executed by Stanley P. Nitsche, a photostatic copy of said satisfaction, recorded in Official Records Book 121 at page 160 of the public records of Dade County, Florida, being attached hereto as Exhibit 'F'. Plaintiff, through her said agent, then consummated the purchase of said property by paying $700.00 to John T. Grier, as agent for Grier Enterprises, Inc., for the equity of said corporation in said property, whereupon Grier Enterprises, Inc. executed and delivered to plaintiff's agent a warranty deed conveying said property to said agent subject to the first mortgage described above, a photostatic copy of said warranty deed, recorded in Official Records Book 121 at page 162 of the public records of Dade County, Florida, being attached hereto as Exhibit 'G'.

'g. On March 13, 1957, upon being advised that plaintiff desired to take title to said property in her name rather than in the name of her agent, Grier Enterprises, Inc. executed and delivered to plaintiff the warranty deed described in paragraph 3 above, a photostatic copy of said deed being attached hereto as Exhibit 'A'; and on September 22, 1957 said agent, Walter A. West, Jr., a single man, executed and delivered to plaintiff a warranty deed conveying to plaintiff any interest he had acquired in said property by the warranty deed described in subparagraph f above, a photostatic copy of said warranty deed from Walter A. West, Jr., a single man, to Lena F. Doyle, recorded in Official Records Book 455 at page 355 of the public records of Dade County, Florida, being attached hereto as Exhibit 'H'.

'h. At the time of the purchase of said property by plaintiff in March 1957, the suit mentioned in sub-paragraph d was pending on motion to dismiss the complaint and said suit continued in that status for a period of approximately nine months until December 4, 1957 when Charles B. Tutan, as Executor of the Estate of Lorna Higgins, took the first of several steps to bring said suit to final hearing; and when he applied for the final decree mentioned in paragraph 4 above the said Charles B. Tutan, as Executor of the Estate of Lorna Higgins, knew:

'(1) that plaintiff had purchased said property from Grier Enterprises, Inc. in March 1957 for a valuable consideration '(2) that he, individually, as sole beneficiary of the Estate of Lorna Higgins, deceased, and as Executor of said Estate, had approved said sale by accepting $3300.00 from plaintiff in payment of the second mortgage he held on said property, knowing that said $3300.00 was part of the consideration which plaintiff was paying to Grier Enterprises, Inc. for said property;

'(3) that plaintiff had taken exclusive possession of said property when she consummated said purchase in March 1957 and had been making the nonthly payments on the first mortgage on said...