Felt v. Morse
| Decision Date | 30 June 1920 |
| Citation | 85 So. 656,80 Fla. 154 |
| Parties | FELT v. MORSE. |
| Court | Florida Supreme Court |
Rehearing Denied July 31, 1920.
Appeal from Circuit Court, Seminole County; James W. Perkins, Judge.
Suit by J. P. Felt against Charles H. Morse. Decree for defendant and complainant appeals. Reversed.
Syllabus by the Court
Although time may not be of the essence of the original contract to sell and convey land, it may subsequently be made so by express notice, given by a party to the contract who is not in default to the other party who is in default, requiring the contract to be performed within a stated time, which must be a reasonable time according to the circumstances of the case.
Under a contract for the sale of land where no definite date has been agreed upon for the consummation of the contract, in order to constitute time of the essence of the transaction the party to the contract entitled to insist upon performance should fix a definite date in the future for performance, of which the other party thereto is duly notified, which affords to such party reasonable time within which to comply.
Where rescission of a contract is not by mutual consent, a party thereto, who is not himself in default and who elects to rescind, must, in order to effect rescission, give notice to the opposite party of his intention to rescind with reasonable time thereafter within which to comply with the contract.
Where the record title of a vendor, seeking specific performance of an agreement to sell and convey land, is defective, the lapse may be supplied by parol proof of adverse possession under color of title for the statutory period sufficient to establish ownership, even though the contract calls for a perfect title but not a perfect record title.
From the time the owner of land enters into a binding contract for its sale, he holds the same in trust for the purchaser, and the latter becomes a trustee of the purchase money for the vendor, and, being thus in equity the owner, the vendee must bear any loss which may happen, and is entitled to any benefit which may accrue to such land in the interim between the agreement and the conveyance thereof to such vendee.
COUNSEL Cooper, Cooper & Osborne and Giles J. Patterson all of Jacksonville, for appellant.
Massey & Warlow, of Orlando, for appellee.
The controlling question in this case is whether, under the facts, the law will give to appellant the relief sought by him. It is so stated by counsel who bring the case here. There is little controversy as to the material facts.
The parties appellant and appellee, hereinafter referred to as vendor and purchaser, respectively, entered into an agreement by which the vendor agreed to sell and the purchaser to buy certain described land in Seminole county upon which there was an orange grove, together with equipment, and subject to perfect title in the vendor. The contract was made, as appears from a telegram and letter in the record, on December 29 and 30, A. D. 1916. There was no formal written contract but the purchaser, at the vendor's request, deposited 'in escrow' in a designated bank $1,000 of the purchase money, and on January 1, 1917, entered into possession of the property.
In the early part of January, 1917, an abstract of the title of the land was delivered to the purchaser, and such abstract was thereupon placed in the hands of his attorneys for examination, who, in the latter part of the month, reported that the abstract showed certain defects in the vendor's title.
On the 3d, 4th, and 5th of February following a freeze occurred which damaged the orange grove badly and rendered the property less valuable.
The objections to the vendor's title which were pointed out by the purchaser's attorneys were defective acknowledgments of two deeds in the chain of title of the vendor; but counsel for the respective parties seem to have agreed that the defects would be corrected by properly acknowledged quitclaim deeds from the grantors in the defectively acknowledged deeds, and that the vendor's title thereupon would become such as to meet the requirements of the contract.
When these objections were called to his attention, the vendor proceeded to correct the defects. To do so he obtained during the month of February a quitclaim deed properly acknowledged from the grantor in one of the defective deeds, and procured an affidavit showing his actual adverse possession of the property for the statutory period; his object being to show a valid title by adverse possession against the grantor in the other defectively acknowledged deed.
On February 28th an employé of the purchaser, who was in possession of the property (who had prior to the contract been in the employ of the vendor), informed the representative of the vendor that the purchaser's agent, who had represented him in making the contract, had stated to him (the employé) that the purchaser intended to rescind the contract and go no further with the transaction. Thereupon, on March 1, 1917, the vendor tendered his deed for the property to the purchaser, who declined to accept it. In declining to accept the deed the purchaser, or his representative, stated that he had on that day written a letter to the vendor, a copy of which was then produced, in which he stated his reasons for such action. The reasons given were delay in removing the objections to the vendor's title to the property and the change in the condition of the property occasioned by the freeze.
The vendor, in the meantime having located the grantor in the other defectively acknowledged deed, secured from her a quitclaim deed for the property, properly acknowledged, recorded the same, and on March 5th by letter so advised the representative of the purchaser, stated that he had fully complied with the contract, and insisted that payment for the property be made by the purchaser in accordance with the terms of the contract.
The purchaser declined to go any further with the transaction, whereupon the vendor brought suit for specific performance of the contract.
The decree was for the defendant.
The original agreement between the parties fixed no time for the delivery of the deed and the payment of the purchase money. There was no later express agreement fixing such time. Time, therefore, was not of the essence of the contract, unless it was specifically made so by the conduct of the parties. If at any time during the negotiations time became, because of an act of either of the parties, of the essence of the contract, the other party was entitled to a reasonable time after notice of such act within which to perform the contract. The rule in such cases is stated in Asia v. Hiser, Adm'r, 38 Fla. 71, 20 So. 796. The court said:
'Although time may not be of the essence of the original contract, it may subsequently be made so by an express notice, given by a party who is not in default to the other party who is in default, requiring the contract to be performed or rescinded within a stated time, which must be a reasonable time according to the circumstances of the case.'
The case of Forssell v. Carter, 65 Fla. 512, 62 So. 926, involved the same principle. In that suit an assignee of a contract to purchase certain land brought suit to require performance of the contract by the owner of the land, who was a party to the contract. The contract contained a provision that the time of payment should be an essential part of the contract. In considering the question of the right of the owner to declare a forfeiture of the purchaser's right to purchase the property under the contract upon his failure to make payment therefor upon the date fixed in the contract, the court said:
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...required 'an abstract showing a merchantable fee-simple title' in the vendor to the land contracted to be conveyed. In Felt v. Morse, 80 Fla. 154, 85 So. 656, the sale subject to 'perfect title in the vendor,' and it was held that since the contract called for a perfect title, not a perfect......
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