Huguley v. Hall

• Decision Date: 15 May 1962
• Docket Number: No. D-127,D-127
• Citation: 141 So.2d 595
• Parties: J. W. HUGULEY, Jr., Appellant v. Carrie HALL, a widow, Appellee.
• Court: Florida District Court of Appeals

Page 595

141 So.2d 595

J. W. HUGULEY, Jr., Appellant v. Carrie HALL, a widow, Appellee.

No. D-127.

District Court of Appeal of Florida, First District.

May 15, 1962.

Rehearing Denied June 11, 1962.

Fla.App. 1962

Richard J. Wilson, Gainesville, for appellant.

Tench & Reynolds and T. E. Duncan, Gainesville, for appellee.

PER CURIAM.

Affirmed. See Ganaway v. Henderson, (Fla.App.1958) 103 So.2d 693; Taylor v. Rawlings, 86 Fla. 279, 97 So. 714, 35 A.L.R. 271. Herrera Y. Nogueira v. Helker et ux., Third District Court of Appeal, 139 So.2d 895. Barnett v. Dollison, 125 Fla. 254, 169 So. 665.

CARROLL, DONALD K., C. J., and WIGGINTON, J., concur.

STURGIS, J., dissents.

STURGIS, Judge (dissenting).

The defendant below appeals from a summary final judgment in favor of the plaintiff-appellee.

Carrie Hall, the plaintiff, contracted to sell certain real property to J. W. Huguley, the defendant. The contract provided for monthly purchase money payments to be made by the defendant, who was placed in possession of the premises, and that upon failure of the defendant-buyer to make either of the payments or to perform any of the covenants on his part under the contract,

'* * * this contract shall, at the option of the * * * [plaintiff-seller] be forfeited and terminated, and the * * * [defendant] shall forfeit all payments made by * * * [defendant] on this contract; and such payments shall be retained by the * * * [plaintiff] in full satisfaction and liquidation of all damages by her sustained, and the said * * * [plaintiff] shall have the right to reenter and take possession of the premises aforesaid without being liable to any action therefor.'

Time was declared to be of the essence of the contract.

Upon defendant becoming $170.00 in arrears, plaintiff filed complaint in equity against appellant and his wife, alleging and praying:

'I.

'Plaintiff is now, and was at all times material to this cause of action, the absolute fee simple owner of the following described land in Alachua County, Florida, to-wit: * * * [description] subject, however, to that certain mortgage encumbering the above described land in favor of Hershell Haynes, Ruth A. Haynes, his wife, and Mary E. Jenkins, a widow, dated 27 June 1960 and recorded in Official Record Book 102, page 328 of the public records of Alachua County, Florida.

'II.

'On 20 March 1961, Plaintiff agreed to sell and the Defendants agreed to purchase the above described land pursuant to the terms and conditions of a certain Article of Agreement, a copy of which is attached hereto as Plaintiff's Exhibit 'A'.

'III.

'On or about 25 May 1961, Plaintiff vacated the premises and the Defendants took possession of said land and the dwelling situate thereon and did all other things required of her to be performed under said Articles of Agreement.

'IV.

'The Defendant have breached the terms and conditions of the said Articles of Agreement by failing to make the payments to the Plaintiff, as provided in the Articles of Agreement. The Defendants are now in arrears for two (2) payments of Sixty and 00/100 Dollars ($60.00) each and one (1) payment of Fifty and 00/100 Dollars ($50.00), for a total of One Hundred Seventy and 00/100 Dollars ($170.00), as called for by the Articles of Agreement.

'V.

'The, Plaintiff, by reason of the Defendants' failure to abide by and perform the covenants, conditions and agreements contained in the said Articles of Agreement, has in accordance with the provisions set forth therein elected to and does hereby declare said Articles of Agreement rescinded and terminated.

'VI.

'Whereupon, it became necessary for Plaintiff, in order to protect her interests in the premises, to refer the same to the undersigned attorneys for collection, and said Plaintiff has employed such attorneys to bring this suit consequent upon such default upon the part of the Defendants and has obligated herself and agreed to pay reasonable attorneys' fees for such services in this behalf together with all and singular the costs, charges and expenses, including abstract recertification reasonably incurred and payed by said Plaintiff in this connection.

'WHEREFORE, Plaintiff prays that:

'1. The Court will take jurisdiction of the parties hereto and the subject matter hereof.

'2. The Court will rescind and terminate the Articles of Agreement entered into between the Plaintiff and Defendants on 20 March 1961.

'3. The Defendants be ordered and directed to forthwith deliver up the possession of the land hereinabove described together with all buildings situate thereto

'4. That a reasonable attorney's fee for Plaintiff's attorneys of record herein be set and the Defendants be ordered and directed to pay to the Plaintiff such amount together with Court costs and other expenses, charges and costs incurred herein.

'5. She be granted such other and further relief as Plaintiff may be entitled to receive in the premises.'

Defendants moved to dismiss the complaint for failure to state a cause of action, and also moved to strike paragraph VI of the complaint and paragraph 4 of the prayer for relief. The motion to dismiss was denied as to defendant J. W. Huguley, but was granted as to his wife for the reason that she was not a party to the contract. The motion to strike was granted. Thereupon defendant filed an answer preserving the attack upon the sufficiency of the complaint.

Plaintiff moved for summary judgment, supported by her affidavit asserting substantially the same facts stated in the complaint, whereupon defendant moved to transfer the cause to the law side of the court on the ground that the complaint shows on its face that the cause of action is not within the jurisdiction of a court of equity. On hearing said motions the court entered a summary final decree finding:

'1. This Court has jurisdiction of the parties and of the subject matter of the suit.

'2. Defendant has had more than adequate time to file proofs and assert any grounds for equitable relief.

'3. The contract provided that upon default by the Defendant in the making of payments or otherwise the contract should at the option of the Plaintiff be forfeited and terminated, and the Defendant should forfeit all payments made by him on the contract as liquidated damages; that the Plaintiff should have the right to re-enter and to take possession of the premises; and that time was of the essence of the contract.

'4. The Defendant is in default for failure to make payments either within or within a reasonable time after the time allowed for the making of same under the terms of the contract.

'5. The Plaintiff elected to rescind and terminate the contract upon Defendant's default as aforesaid, and gave Defendant adequate written notice thereof by the filing of the complaint herein.

'6. The Defendant has presented neither pleading nor proof that he is entitled to equitable relief or otherwise shown that equitable grounds for relief from the forfeiture exist.'

On the basis of said findings the final decree denied defendant's motion to transfer the cause to the law side, granted plaintiff's motion for summary decree, adjudged the contract in suit 'to be null and canceled and to be foreclosed,' barred the defendant and all parties claiming under him 'from any right, title or interest in said premises,' allowed the defendant ten days in which to deliver up the possession of the premises to the plaintiff, and ordered the clerk to issue a writ of assistance if necessary to enforce the decree. The decree did not, however, contain any provisions for sale of the subject property in the manner provided for foreclosure or otherwise afford the defendant any opportunity to assert an equity of redemption in the property.

Two points of law are presented for determination on this appeal: (1) whether the court erred in denying defendant's motion to transfer the case to the law side; and (2) whether the complaint states a cause of action in equity for cancellation of the agreement of March 20, 1961.

Upon entry of the order dismissing the complaint as to defendant's wife and granting defendant's motion to strike paragraph No. VI and prayer No. 4 of the complaint, the case was then in such posture that the relief available, if any, under the remaining allegations and prayers of the complaint, was (1) to have the court 'rescind and terminate' the agreement (an act which, according to the specific allegations of the complaint, had been done by the plaintiff as a matter of right under the contract), and (2) to oust the defendant from possession of the subject property and deliver it to the plaintiff. A more typical state of facts upon which to assert the right to relief at law by suit in ejectment can hardly be conceived.

A cursory reading of the complaint is sufficient to indicate to the practitioner familiar with suits quia timet under Florida law that it is totally inadequate to afford that type of relief; neither does it alleged facts sufficient to state a cause in equity for cancellation of the subject contract on the ground of fraud, mistake, turpitude of consideration, or circumstances posing a case for relief on the principle of quia timet. It is no less lacking as a basis for a declaratory decree under our statute. The suit is thus finally resolved into a possessory action and, in my opinion, was erroneously brought in equity rather than at law. It was therefore mandatory under the rules of practice, as well as F.S. 66.11 and 66.16, F.S.A., for the chancellor, on motion of the defendant, to transfer the cause to the law side of the court and require the parties to make up and try an issue in ejectment. Considering the purpose of the suit as stated by the complaint, this procedure clearly affords an adequate and complete remedy at law.

Section 66.11, Florida Statutes, F.S.A., provides for suits to remove clouds on title 'against any person or corporation not in actual possession.' Section 66.16, Florida Statutes, relating...