Gore v. General Properties Corp.
| Decision Date | 13 March 1942 |
| Citation | 149 Fla. 690,6 So.2d 837 |
| Parties | GORE v. GENERAL PROPERTIES CORPORATION. |
| Court | Florida Supreme Court |
Kennedy & Kennedy, of Fort Lauderdale, for plaintiff in error.
Chancey & Chancey, of Fort Lauderdale, for defendant in error.
On June 10, 1940 R. H. Gore and R. H. Gore, as trustee of R. H. Gore Company filed a declaration in the Circuit Court of Broward County Florida, against General Properties Corporation consisting of four counts and claiming damages in the sum of $25,000. The first count is, viz:
'1. The defendant, General Properties Corporation, on the 17th day of March, 1936, executed and delivered to R. H. Gore, his heirs and assigns, a warranty deed, whereby, for the consideration therein mentioned, said defendant did convey and warrant unto the said R. H. Gore, his heirs and assigns, a warranty deed whereby, for the consideration therein mentioned, said defendant did convey and warrant unto the said R. H. Gore his heirs and assigns the following described lands, situate, lying and being in Broward County, Florida, to-wit:
'Lots Fifteen (15), Sixteen (16), Seventeen (17), Eighteen (18) and Nineteen (19) of Block Thirty (30) of the town of Fort Lauderdale, according to the plat thereof recorded in Plat Book 'B', page 40, of the public records of Dade County, Florida;
'Wherefore plaintiffs sue defendant and claim $25,000.00 damages.'
The second, third and fourth counts differ from the first count only in amount of damages sought to be recovered. The second count sought to recover the sums of money expended necessary to clear up and quiet the title by removing existing encumbrances. The third count sought to recover the losses sustained by failure to sell the property because of the alleged encumbrance. The fourth count sought to recover the moneys lost by a failure to sell the land because of the encumbrance and the moneys expended necessary to quiet title against the encumbrance alleged to be the inchoate right of dower of Concepcion Fernandez Loud. A bill of particulars attached to the original declaration is, viz: (a) To damage for loss of sale $20,000; (b) to damages for cost of quieting title, $3,156; (c) to damages, $1,843.89; total $25,000.
On August 11, 1940, an order was made striking the name of R. H. Gore as a proper party plaintiff; and on August 16, 1940, an order was entered sustaining a motion to strike counts 1, 2 and 4 of the declaration, and a demurrer was sustained as to count 2, with leave to amend the second count.
On September 2, 1940, an amended declaration was filed, with bill of particulars attached, viz:
'The plaintiff, R. H. Gore, as Trustee for R. H. Gore Company, an Illinois corporation, by leave of Court first had and obtained and by his undersigned attorneys sues General Properties Corporation, a Florida corporation, and claims damages in the sum of $25,000.00, for this to-wit:
'1. The defendant, General Properties Corporation, on the 17th day of March, 1936, executed and delivered to R. H. Gore, his heirs and assigns, a warranty deed, whereby, for the consideration therein mentioned, said defendant did convey and warrant unto the said R. H. Gore, his heirs and assigns, the following described lands, situate, lying and being in Broward County, Florida, to-wit:
'Lots Fifteen (15), Sixteen (16), Seventeen (17), Eighteen and Nineteen (19) of Block Thirty (30), of the town of Fort Lauderdale, according to the plat thereof recorded in Plat Book 'B', page 40, of the public records of Dade County, Florida;
'That in and by said deed, the said defendant did covenant with the said R. H. Gore, his heirs and assigns, that at the time of the making and delivery of said warranty deed, it, the defendant, was lawfully seized and possessed of the premises in an estate in fee simple and that said premises were free of all encumbrances. Nevertheless, plaintiff avers that the said real estate was not at the time of the ensealing and delivery of said Warranty deed to R. H. Gore free and clear of all encumbrances in that one Concepcion Fernandez Loud, wife of Wilmer A. Loud, had an inchoate right of dower in and to said real estate, and which said inchoate right of dower did constitute an encumbrance on said real estate, by reason of which the plaintiff, R. H. Gore, as Trustee for R. H. Gore Company, who acquired title to said real estate by a warranty deed from R. H. Gore on September 9th, 1938, and is now claiming by, through and under the said R. H. Gore, was required to and did expend large sums of money to clear and quiet the title to said real estate and remove the encumbrance existing thereon as aforesaid. Plaintiff says that such expenditures were reasonable and necessary.
'Wherefore, plaintiff sues defendant and claims $25,000.00 damages.
'Kennedy & Kennedy
'By W. T. Kennedy
'Attorneys for Plaintiffs.
A demurrer was directed to the amended declaration and the grounds thereof were: (1) Notice of the existence of the encumbrance prior to the institution of suit to quiet title and incurring the expenses incident thereto was not had on the defendant; (2) an opportunity to quiet the title at the expense of the defendant was never given by the plaintiff prior to incurring and payment of the costs incident to the removal by a decree of the court of the encumbrance; (3) plaintiff failed to allege that notice of the existence of the encumbrance against the title and the intention of plaintiff to clear same by court decree was never served on defendant prior to the institution of the suit to quiet title; (4) it is not alleged that a demand to clear the title of the inchoate right of dower of Concepcion Fernandez Loud by the plaintiff on the defendant prior to the institution of suit to quiet title; (5) it was not alleged that Concepcion Fernandez Loud claimed or asserted an inchoate right of dower to the real estate.
Likewise a motion to strike the amended declaration was filed and an order was entered by the Circuit Court on July 22, 1941, sustaining the demurrer to the amended declaration and a motion to strike the item of $500, alleged to be expenses incidental to preparing and causing to be passed Chapter 19116, Acts of 1939, Laws of Florida. The plaintiff below declined to amend his amended declaration, and on August 15, 1941, a final judgment in behalf of the defendant and against the plaintiff was entered and an appeal therefrom perfected to this Court.
A right of dower, inchoate or consummate, is an encumbrance within the covenant against encumbrances. An inchoate right of dower does not constitute an estate, title, or interest in land. See Vol. 7 Thompson on Real Property, Perm. Ed., par. 3714, p. 192. An encumbrance within the covenant against encumbrances is every right to or interest in the land, which may subsist in a third party, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance. Right of dower, inchoate or consummate, is an encumbrance. See Flood v. Graham, 61 Fla. 207, 54 So. 456, Ann.Cas.1912D, 1137; Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 So. 381, 30 L.R.A., N.S., 833, Ann.Cas.1912C, 647; 21 C.J.S., Covenants, p. 957, § 100; 2 Devlin on Real Estate, 3rd Ed., 1704, par. 907; 15 C.J. 1234, pars. 46, 47, 21 C.J.S. Covenants, §§ 98, 108.
The covenants in the warranty deed, being the basis of this suit, are alleged in the declaration. The deed was not by reference made a part thereof. The case of Flood v. Graham, 61 Fla. 207, 54 So. 456, 457, Ann.Cas.1912D, 1137, involved encumbrances within the covenants of a deed and are, viz:
"And the said parties of the first part for themselves and their heirs executors and administrators do covenant and agree with the said party of the second part, his heirs, executors, administrators and assigns, that they are lawfully seised of the said premises in fee simple, and have good right to sell and convey the same to the said party of the second part; that the said premises are free and discharged from all taxes, tax titles or certificates, judgments, mechanics' liens and incumbrances of any kind whatsoever; and that they will, and their heirs shall, warrant and defend the same to the said party of the second part, his heirs and assigns forever, against the lawful claims and...
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