Herrera Y Nogueira v. Helker, 61-562
| Decision Date | 10 April 1962 |
| Docket Number | No. 61-562,61-562 |
| Citation | 139 So.2d 895 |
| Parties | Alberto HERRERA Y NOGUEIRA, Appellant, v. George J. HELKER and Mary H. Helker, his wife, Appellees. |
| Court | Florida District Court of Appeals |
J. M. Flowers, Miami, for appellant.
Richard H. Hunt and Daniel Neal Heller, Miami, for appellees.
Before HORTON, CARROLL and BARKDULL, JJ.
The appellant, defendant below, was the assignee of a contract for the sale of certain real property located in Dade County, Florida. The appellees were the fee simple owners of the property.
The appellant seeks reversal of a final decree that, inter alia, adjudicated that the contract of sale, the assignment, and extension thereof were null and void, and removed and cancelled the same of record as clouds on the title of the appellees. The counterclaim of the appellant for the return of the deposits described in the contract for sale and extension was dismissed.
The appellant contends (1) that the abstract of title provided by the appellees under the terms of the contract of purchase did not show a marketable title in the appellees; (2) that no rescission of the contract had been made by the appellees prior to the institution of suit, nor had there been any prior notice of rescission of said contract given to appellant; (3) that there was a lack of equity in the appellees' complaint because of their failure to offer to place the appellant in status quo prior to a rescission of the contract; and (4) that there was no proof of actual damages assuming the appellant was in default that would warrant the forfeiture of the entire deposit under the contract.
The record here discloses that the contract of purchase was executed by the appellant's father-in-law and subsequently assigned to the appellant. A deposit of $10,000 was made at the time of the execution of the contract. By the terms of the contract, time was of the essence. The appellees were required to furnish an abstract of title to the appellant within fifteen days after the date of the contract, which abstract was to disclose a good and marketable title in the appellees. The appellant was required by the contract to object to the title in writing within fifteen days after receipt of the abstract, in which event the sellers would use reasonable diligence and were given a reasonable time within which to make the title good. In addition, the contract provided the following:
'In the event the Buyer [appellant] fails or refuses to complete the closing of this contract within the time specified, then all monies this date paid shall be retained by the Sellers as agreed and liquidated damages and thereafter each party shall be relieved of further liability under the contract.'
The contract and the subsequent assignment to appellant were recorded in the public records of Dade County. The abstract of title was delivered within the required time provided by the agreement, but the appellant did not register any objections to the title within the fifteen-day period provided. An extension of the original contract to purchase was executed on the 30th of August, 1960, which, for...
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