Frumkes v. Boyer
| Decision Date | 19 March 1958 |
| Citation | 101 So.2d 387 |
| Parties | Lillian G. FRUMKES, Max Gratz and Sidney Light, Appellants, v. Bryan B. BOYER and Jessie M. Boyer, his wife, Appellees. |
| Court | Florida Supreme Court |
Melvyn B. Frumkes, Miami Beach, for appellants.
Smith & Carter, Miami, for appellees.
The appellees, Bryan and Jessie Boyer, commenced this litigation by instituting a suit against the appellants, Frumkes, Gratz and Light, to remove a cloud from appellees' title to a 30-foot strip of land lying to the north of and adjacent to a parcel owned by appellants. The cloud is alleged to have arisen out of a conveyance from an intervening grantee to appellants covering the 30-foot strip along with an adjacent parcel originally owned by appellees.
The controversy originated under the terms of a sales agreement between appellees, plaintiffs below, as vendors, hereafter called plaintiffs, and one Roth, predecessor in title of appellants, hereafter called defendants, and a deed executed pursuant thereto in 1953, by which the plaintiffs conveyed:
'The North 115 feet of East 135 feet of Tract 11, in Section 6, Township 53 South, Range 41 East, Florida Ranch and Dairy Corporation, as per plat thereof recorded in Plat Book 7, page 113, of the Public Records of Dade County, Florida, less the North 30 feet thereof, which shall be dedicated within one year for a public street or road.' (Emphasis added.)
The concluding language was preserved in an intervening conveyance, but omitted from the deed to defendants, which purported to convey the entire north 115 feet of the plot in question. A plat incorporated in the record makes plain the physical features around which the argument revolves:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The defendants, by their answer, denied that the plaintiffs owned the clear fee simple title to the 30-foot strip, and asserted that 'Plaintiff held said property subject to a covenant to dedicate which had never been performed.' It was further set forth by way of counterclaim that each intervening deed of the property, including the deed to defendants above described, constituted a conveyance by grantors of 'all their interest that they had in said covenant to dedicate the North 30 feet thereof for a public street or road.' Defendants asked that plaintiffs 'be decreed to specifically perform the said covenant to dedicate.'
As an affirmative defense to the counterclaim the plaintiffs asserted that they had done everything in their power to dedicate the disputed strip. The evidence in this regard shows little or no response by plaintiffs to repeated requests by counsel for execution of an instrument of dedication, other than negotiations exemplified by a letter to the city council under date of June 13, 1955, as follows:
'Since the City of Hialeah has purchased the adjoining property I would like to know if the City intends to put this street through.
City officials obliged with a statement approving a recommendation from the Planning & Zoning Board 'that you be sent a letter informing you that the City of Hialeah has no intentions of opening West 47th Street from Palm Avenue to West 2nd Avenue and that the City has no intention of dedicating their portion of the street right-of-way and thereby relieve you of any obligation for the dedication of your portion of this street.'
The decree entered in the cause contains no finding on the latter issue but states simply that 'the grantors, by their execution...
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