Fletcher v. Williams

• Decision Date: 21 May 1963
• Docket Number: No. E-66,E-66
• Citation: 153 So.2d 759
• Parties: T. B. FLETCHER, and his wife, Aline Fletcher, Appellants, v. Lois Philpot WILLIAMS, Ruth Fletcher and P. C. Crapps, Jr., as Administrators of the estate of Madison Fletcher, deceased, with the Will annexed, and as Executors of the last Will and Testament of Mae Fletcher, deceased, and as Trustees for the Trust left for the use and benefit of Walter Madison Fletcher and McCall's Chapel Methodist Church, Appellees.
• Court: Florida District Court of Appeals

Page 759

153 So.2d 759

T. B. FLETCHER, and his wife, Aline Fletcher, Appellants, v. Lois Philpot WILLIAMS, Ruth Fletcher and P. C. Crapps, Jr., as Administrators of the estate of Madison Fletcher, deceased, with the Will annexed, and as Executors of the last Will and Testament of Mae Fletcher, deceased, and as Trustees for the Trust left for the use and benefit of Walter Madison Fletcher and McCall's Chapel Methodist Church, Appellees.

No. E-66.

District Court of Appeal of Florida, First District.

May 21, 1963.

J. L. Blackwell, Live Oak, for appellants.

Alfred T. Airth, Live Oak, for appellees.

WIGGINTON, Judge.

Plaintiffs have appealed from a final judgment granting Appellees' motion to dismiss their third amended complaint with prejudice on the grounds, among others, that (1) the verbal agreement sued upon violates the statute of frauds; and (2) that the agreement was not in writing signed in the presence of two subscribing witnesses by the persons whose executors are now sought to be charged. It is contended that the complaint states a cause of action for the relief prayed therein, and that the chancellor erred in the rendition of his decree of dismissal.

The complaint is one for declaratory decree by which plaintiffs allege that they acquired title to a parcel of land in Dixie County pursuant to a parol agreement between them and defendants' decedents whereby the latter promised to make a gift of the land to plaintiffs either by deed or by last will and testament. The complaint prays for a judicial declaration of plaintiffs' rights in the premises and a decree requiring defendants to execute and deliver a conveyance of the land to them, or in the alternative that plaintiffs' title be quieted against the claims asserted by defendants in their representative capacities.

The complaint alleges that fee title to the land in question was vested in Madison Fletcher and his wife, Mae Fletcher, prior to their respective deaths. It is alleged that plaintiffs entered into a parol agreement with the Fletchers during the latter's lifetime whereby the latter bound themselves to make a gift of the land to plaintiffs if plaintiffs would move onto the property and care for it and the livestock maintained thereon, and render other personal services to the Fletchers so long as they should live. It is alleged that the gift was to be consummated either by deed or by last will and testament. Plaintiffs allege that they performed their part of the agreement by moving on the land, caring for it, the livestock and improvements located thereon; by clearing and placing in cultivation a portion thereof, and by rendering other personal services to the Fletchers until their respective deaths in 1960 and 1961. It is alleged that no deed conveying the land to plaintiffs was executed during the lives of either of the decedents, and that although both of them died testate, no provision was made in either of their wills devising the land in question to plaintiffs.

Tested by common law principles relating to the law of contracts it must be held that the complaint is sufficient to state a cause of action. For the purpose of considering a motion to dismiss, the well pleaded allegations of the complaint are taken as true. The complaint sufficiently alleges an agreement entered into between plaintiffs and defendants' decedents regarding a conveyance of real property. From the complaint it affirmatively appears that plaintiffs have fully discharged their obligations under the contract, and fully paid their part of the consideration for which it was agreed they would receive a conveyance of the land in question the conveyance to be made either by deed or by devise in the last will and testament of the decedents.

Appellees assert that even conceding the truth of the facts alleged in the complaint, plaintiffs are precluded from maintaining this action and seeking the relief prayed by the complaint for the reason that the agreement to convey by deed is not in writing and otherwise violates the mandatory provisions of the statute of frauds, ¹ as well as the statute relating to agreements to make a will of real or personal property. ² We pause to note that the latter statute is only declaratory of the decisional law of this state. Prior to the adoption of this statute it was consistently held by the courts of Florida that contracts to make a will devising real estate are in the same class as agreements for the sale or conveyance of lands which, if not in writing, are clearly condemned by the statute of frauds. ³

At common law contracts for the sale or conveyance of lands, as well as contracts to make a devise of lands by a last will and testament, could be established either by parol evidence or by a written instrument in the same manner as any other kind of contract. It was primarily to prevent fraud and perjury in claims relating to land that the English adopted the first statute of frauds entitled 'An Act for the Prevention of Frauds and Perjuries'. ⁴ The English statute of frauds is usually not considered as extending to this country and is of force here only by virtue of its adoption by the legislatures of the several states, directly or indirectly. ⁵ Statutes requiring contracts to be in writing or evidenced by a written memorandum thereof do not deprive the parties of the right to contract with respect to the matters therein involved, but merely regulate the formalities of the contract necessary to render it enforceable. ⁶ Such statutes do not render a verbal contract void, but are merely a limitation on the judicial authority to afford a remedy for enforcement.

Appellants contend that if appellees elect to rely on the statute of frauds as a defense to the cause of action alleged in the complaint, they may assert it only by pleading the bar of the statute as an affirmative defense in an answer filed to the complaint as required by Rule 1.8(d), 1954 Rules of Civil Procedure, 30 F.S.A., but may not urge the statute as a ground of the motion to dismiss.

Prior to the year 1950 the practice and procedure in Florida was in accordance with principles of common law pleading or as provided in the chancery act then in effect. Under this system affirmative defenses to causes of action alleged in a declaration at law or complaint in equity were normally asserted by way of plea or answer. It was likewise a generally accepted rule of pleading that if an affirmative defense to the cause of action sued upon appeared on the face of the declaration or complaint, the defense could be asserted as a ground for a motion to dismiss or demurrer. Typical of the cases so holding is the Thrasher case decided by the Supreme Court of Florida in 1943. ⁷

In 1949, effective January 1, 1950, the Supreme Court adopted our present rules of civil procedure which now control the practice and pleading in causes of action both at common law and in equity. These modern rules of procedure introduced into the jurisprudence of this state an entirely new concept of pleading and procedure to be employed in the litigation of civil actions. Among the rules so adopted is one relating to affirmative defenses in which it is provided that:

'In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * *' ⁸

The rules further provide:

'A party shall be deemed to have waived all defenses and objections which he does not present either by motion as hereinbefore provided or, if he had made no motion, in his answer or reply, except (1) that the defense of failure to state a cause of action, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. See Rule 1.39. The objection or defense, if made at the trial, shall be disposed of as provided in Rule 1.15(b) in the light of any evidence that may have been received.' ⁹

The foregoing rules have been uniformly construed to mean that if a complaint filed in a civil action states a cause of action in accordance with either statutory, common law or equitable principles, the complaint will be sufficient to withstand of action in accordance with either statutory, elects to assert an affirmative defense as a bar to the action, such defense must be pleaded in an answer filed in response to the complaint. Affirmative defenses may not be asserted as grounds for a motion to dismiss the complaint, even though the availability of the defense as a bar to the action may appear on the face of the complaint.

Rule 1.8(d) of the Florida Rules of Civil Procedure was taken from and is an exact counterpart of Ruld 8(c) of the Federal Rules of Civil Procedure relating to the pleading of affirmative defenses. Courts in the federal jurisdiction have consistently construed this rule to mean that the affirmative defense of the statute of frauds must be pleaded in a responsive pleading addressed to a cause of action, and may not be asserted as a ground for a motion to dismiss. ¹⁰ The only exception to this rule of procedure in the federal courts is in those instances where an affirmative defense appears on the face of the pleading to which a response is required. In these instances a motion to dismiss the pleading for failure to state a claim on which relief may be granted may be treated under Rule 12(b) of the Federal Rules as a motion...