Fisher v. Miller

• Citation: 92 Fla. 48,109 So. 257
• Parties: FISHER v. MILLER et al.
• Decision Date: 29 June 1926
• Court: Florida Supreme Court

109 So. 257

92 Fla. 48

FISHER v. MILLER et al.

Florida Supreme Court, Division A.

June 29, 1926

Suit by Charles F. Fisher against M. P. Miller and others. From an order sustaining defendants' plea, complainant appeals.

Reversed for further proceedings.

Syllabus by the Court

SYLLABUS

Purchaser with notice that grantor had contracted to convey to another may be compelled to perform grantor's contract. One purchasing property with notice that the grantor had contracted to convey to another may be compelled to perform the contract in the same manner and to the same extent as the grantor would have been liable to do had he not transferred the legal title.

Purchaser ignorant that vendor was married and believing that he could give unincumbered title to land not homestead can obtain specific performance, with abatement from purchase price of present worth or value of inchoate right of dower in vendor's wife. Where a married man enters into a contract for the sale and conveyance of real estate not homestead property, the wife not joining therein, and the vendee enters into the contract in ignorance that the vendor was married and believing that the vendor could give an unincumbered title, such vendee can obtain in equity specific performance by the vendor of the contract, with an abatement from the purchase price of the present worth or value of the inchoate right of dower vested in such vendor's wife.

Where purchaser knows vendor is married, and wife without husband's inducement refuses to join in deed to land not homestead, purchaser can only obtain specific performance to extent of husband's interest, without abatement for outstanding dower interest of wife, who did not join in contract to convey (Rev. Gen. St. 1920, § 3803). If a vendee enters into a contract, in which the vendor's wife does not join, for the purchase of real estate, not a homestead the vendee knowing the vendor to be a married man, and hence knowing that his wife is entitled to dower, which right she cannot be compelled to release, and the wife, without the husband's inducement or procurement, refuses to join in the husband's deed to the vendee, such vendee can only obtain specific performance of the contract to the extent of the vendor husband's interest or title, without any abatement or compensation to cover the outstanding dower interest of the wife. Appeal from Circuit Court, Pinellas County; M A. McMullen, judge.

COUNSEL Hilton S. Hampton, of Tampa, for appellant.

Harris & Denning and Cook & Harris, all of St. Petersburg, for appellees.

This was a bill for specific performance of contract for the conveyance of land, brought by the vendee, Charles F. Fisher, against the vendor, M. P. Miller, and two subsequent vendees, Laughner and wife, who are alleged to have purchased the property with notice of the complainant's contract rights and to hold the legal title in trust for complainant. The bill alleges:

That at the time the contract to convey was made Miller was the owner in fee simple of the property described in the bill, which contract was in writing, signed by him, setting forth the price, terms of payment, and description of the land sold, and that $200 was paid at the time of the execution of the contract by the purchaser, and that this contract was assigned by the original purchaser to the complainant. That after receiving a portion of the purchase price and letting the complainant into possession of the property, Miller discovered that he could sell the land for a larger sum, and thereupon tendered the complainant, at various times, large sums of money to be released from said agreement, which offers were declined, owing to the fact that complainant very much desired the property for residential purposes, having found no other property in the vicinity of said land which would be suitable for complainant's purposes, and that complainant, when declining to accept said offer and release Miller, expressed his willingness and ability to carry out and perform the agreement of purchase according to its true tenor and effect, but that Miller refused the tender, which complainant avers he is still able, ready, and willing to perform, and to make all payments required of him by the contract.

That thereafter the defendant Miller sold and conveyed the property to Aymer V. Laughner, who made the purchase and took the conveyance with full knowledge of complainant's rights in and to the lands as against the defendant Miller, and that Miller made the conveyance with the intent to divest himself of the legal title to the land in order to prevent his being required to convey the land to complainant.

That as there is no other land in the vicinity as well suited to complainant's purpose as this land, he cannot be adequately compensated in damages, and that the defendants, Laughner and wife, having taken conveyance with full knowledge of complainant's rights, should be decreed to hold the legal title to the same in trust for complainant, he being ready and willing, and offering in the bill to make such payment on the purchase price to the defendant Miller or to the defendant Laughner as the court may find he is entitled to receive.

The prayer of the bill is that defendant Miller be decreed to specifically perform his agreement under such terms and conditions as the court may direct, and to make and deliver to complainant a good and sufficient deed of conveyance of the property, complainant offering to perform all the terms and conditions of the contract on his part, and that the defendants Laughner and wife be decreed to have received no right, title, or interest adverse or paramount to the right of complainant by virtue of the deed made to them, and that said deed and any right or title thereunder asserted by them may be decreed to be subordinate and inferior to the right of the complainant to specific performance, and that their said deed and all right thereunder be canceled as a cloud upon complainant's title, and that they be decreed to hold in trust for complainant and required to reconvey whatever right, title, or interest they may have acquired by such conveyance, or, in default of such conveyance by them, that the decree operate as a conveyance thereof.

There is also a general prayer for such relief in the premises as may be agreeable to equity and as the circumstances of the case shall warrant.

No demurrer was filed to the bill, but a plea joined in by all the defendants was filed, which alleged that at the time of the execution of the contract and at all times thereafter, the said M. P. Miller was and is a married man, the lawful husband of Addie Miller, and that at the time of the execution of such contract 'under and by virtue of the marital relations then existing between the defendant M. P. Miller, and the said Addie Miller, she, the said Addie Miller, wife of defendant M. P. Miller, had right of dower in the land described in the bill of complainant, and the said defendant M. P. Miller was on the 5th day of October and has at all times since been unable to make complete conveyance of such tract of land without having the said Addie Miller, his wife, join therein'; and further alleges that the agent of the original purchaser, complainant's assignor, and thereafter the agent of the complainant, had at the time of the execution of the contract knowledge of the fact that the defendant was a married man, in that said agent was and is well and intimately acquainted with the said Miller.

This plea was sustained by the court, and from the order sustaining said plea this appeal was taken.

OPINION

BROWN C.J. (after stating the facts as above).

It will be observed that the plea does not allege that Mrs. Miller, wife of the defendant, refused to join in the execution of the conveyance to the complainant; it merely alleges that the defendant Miller had been and was unable to make complete conveyance of the land without having his wife join therein. Nor does the plea allege that the property involved was the homestead of the vendor, so the question of what would have been the effect if the property were a homestead is not before us.

The bill does not allege that Mrs. Miller joined in the deed made by her husband to the second vendee, Laughner, and she is not made a party defendant to the bill. Nor does it appear that she was a necessary or proper party, it not being alleged that she had joined in the contract sought to be enforced, or in the deed to the second vendee. Taylor v. Mattheus, 53 Fla. 776, 44 So. 146.

The doctrine laid down in the first headnote of the case of Hannan v. Holz, 84 Fla. 1, 92 So. 874, applies in this case in so far as the right and title of Miller conveyed by him to Laughner and wife, is concerned. This headnote follows the language of the opinion, and reads as follows:

'One purchasing property with notice that the grantor had contracted to convey to another may be compelled to perform the contract in the same manner and to the same extent as his grantor would have been liable to do had he not transferred the legal title.'

This follows the rule announced in Drake v. Brady, 57 Fla. 393, 48 So. 978, 17 Ann. Cas. 1035; Drake Lumber Co. v. Branning, 66 Fla. 543, 64 So. 263. See, also, Pomeroy Spec. Perf. § 465.

It is contended by appellee that this doctrine does not apply here because the contract with the first vendee, of which the second vendees had notice, was not such a contract as could be specifically enforced in equity on account of the failure of the vendor's wife to join in the contract, and that therefore such second vendees took title with notice of an unenforceable contract, for the violation of which the vendor could only be sued personally for damages for breach thereof, and which...