Hurley v. Werly, 7130

• Decision Date: 01 November 1967
• Docket Number: No. 7130,7130
• Parties: Joseph P. HURLEY, as Bishop of the Diocese of St. Augustine, Appellant, v. Albert C. WERLY, individually and as Trustee, and LaVoie Realty and Insurance, Inc., a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 530

203 So.2d 530

Joseph P. HURLEY, as Bishop of the Diocese of St. Augustine, Appellant, v. Albert C. WERLY, individually and as Trustee, and LaVoie Realty and Insurance, Inc., a Florida Corporation, Appellees.

No. 7130.

District Court of Appeal of Florida, Second District.

Nov. 1, 1967.

John A. Nelson, of Nelson, Beckett & Nelson, St. Petersburg, for appellant.

William H. Fleece, of McCutcheon, Fleece & Kennedy, St. Petersburg, for appellees.

PIERCE, Judge.

This is an appeal by plaintiff below from an amended final decree adjudicating a forfeiture of an escrow deposit of $5,000 made by plaintiff under a contract for purchase of real estate.

On January 7, 1966, plaintiff Joseph P. Hurley, as Bishop of the Diocese of St. Augustine, filed complaint in the Pinellas County Circuit Court, alleging that on August 1, 1965, he entered into a written contract for the purchase of certain real property from defendant Albert C. Werly, Trustee, for a purchase price of $50,000, $5,000 cash and the balance of $45,000 to be paid 'upon delivery of abstract of title showing record merchantable and insurable title in the seller'. The contract obligated Werly to 'furnish an abstract of title recertified to date showing title as above required'. An abstract of title was duly delivered to plaintiff's attorney (hereinafter referred to as Nelson), who thereupon pointed out certain title defects to defendant (hereinafter referred to as Werly), who then attempted to remedy the defects by affidavits and like material; but on December 10, 1965, Nelson wrote Werly a letter enumerating the title deficiencies and setting forth why the defects had not been remedied.

Thereafter, on December 15, 1965, Nelson notified Werly that 'the 60 day period which the contract allows to the seller, (Werly) to remedy the defects in record merchantable title has expired', that good title had not been tendered as called for by the contract, and that plaintiff 'does hereby exercise his option to recall the deposit and to cancel and avoid the contract'.

In this state of the controversy, plaintiff filed his complaint for declaratory decree, asking that the Court declare that the contract required Werly to furnish a merchantable title of record, to direct the broker to return to plaintiff the escrow deposit money, and for other relief not here material.

Defendant Werly answered the complaint, denying that the title shown by the abstract was unmarketable, but that he had nevertheless furnished certain affidavits, etc., to support the title, that the Court declare the contract to obligate Werly to furnish only marketable title 'in fact' and not marketable title 'of record', and that the Court decree specific performance by requiring plaintiff to 'complete the purchase' of the property.

After the cause was at issue, Werly on February 24, 1966 served upon Nelson a notice that he would take plaintiff's deposition on March 11, 1966. On February 28, 1966, Nelson filed motion, pursuant to Rule 1.24(b), Fla., R.C.P., 30 F.S.A., for a 'protective order' on behalf of plaintiff, which motion was denied on March 7, 1966.

On March 15, 1966, Werly filed motion under Rule 1.31(d), F.R.C.P., for final decree of specific performance because plaintiff did not appear on March 11, 1966 for his deposition. On April 4, 1966, the Circuit Judge entered final decree, reciting that plaintiff had 'refused' to appear for his deposition, although he 'was not immune from being so deposed', and thereupon decreeing specific performance against plaintiff.

Plaintiff's petition for rehearing prompted the Court to enter an amended final decree, rescinding specific performance of the contract, but decreeing the $5,000 deposit money to be forfeited by plaintiff as liquidated damages; and it is this decree that plaintiff appeals to this Court.

We reverse.

While the parties pose several diverse points, we believe two questions are determinative of disposition here, viz.: (1) was the lower Court justified in holding plaintiff in default, and (2) was the Court in any event warranted in summarily decreeing for Werly on his answer without adjudicating marketable title. We answer both questions in the negative.

1. The Default. There are three reasons why the Court should not have peremptorily found plaintiff in default, namely: (a) whether plaintiff in his representative capacity is subject to the discovery statutes, (b) materiality of plaintiff's testimony, and (c) whether plaintiff 'willfully refused' to appear for deposition. We will discuss them in such order.

(a) In 1881 one Reid conveyed to John Moore, Bishop of the Roman Catholic Church of St. Augustine, Florida, a tract of land on Orlando. Years later, after Bishop Moore's decease, a devisee of Reid claimed the property because the original deed did not contain the words 'heirs' or 'heirs of the body', which, under the then statutes of Florida, was essential to convey more than a life estate. The then Bishop Barry filed suit to clear the title.

The Orange County Circuit Court denied the claim of Reid and the Supreme Court affirmed in Reid v. Barry, 1927, 93 Fla. 849, 112 So. 846. The opinion held that Bishop Moore's status as Bishop of the St. Augustine diocese of an established Church constituted him, under the common law in force in Florida, 'a corporation sole', and as such immune from the State law aforesaid. We quote from Justice Brown's opinion in Reid, applicable to 'a corporation sole', as follows (text 112 So. 859):

'But * * * the deed in question here * * * would appear to be sustainable upon an old doctrine of the common law, namely, that of the 'corporation sole.' As hereinabove referred to, in another connection, the State of Florida adopted, by statute, the common law, in so far as the same is not inconsistent with our Constitution and statutes. Both our Constitution and our statutes provide means for the formation of corporations aggregate, but we find nothing in either Constitution or statutes which either expressly or impliedly repeals the ancient common-law institution of the 'corporation sole.'

'Blackstone in Book I, p. 470, tells us:

'The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue forever; of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation; so is a Bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar.'

'And on page 472 he further says:

'But, with us in England, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. The king's implied consent is to be found in corporations which exist by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. Of this sort are the king himself, all Bishops, parsons, vicars, church-wardens, and some others; who by common law have ever been held, as far as our books can show us, to have been corporations, virtute officii; and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors at the same time.'

'In volume II, pp. 273, 274, of Kent's Commentaries (13th Ed.), we find the following:

'Corporations are divided into aggregate and sole. A corporation sole consists of a single person, who is made a body corporate and politic, in order to give him some legal capacities and advantages, and especially that of perpetuity, which, as a natural person, he cannot have. A Bishop, dean, parson, and vicar are given in the English books as instances of sole corporations; and they and their successors in perpetuity take the corporate property and privileges; and the word 'successors' is generally as necessary for the succession of property in a corporation sole, as the word 'heirs' is to create an estate of inheritance in a private individual. A fee will pass to a corporation aggregate, without the word successors in the grant, because it is a body which, in its nature, is perpetual; but as a general rule, a fee will not pass to a corporation sole, without the word 'successors,' and it will continue for the life only of the individual clothed with the corporate character. There are very few points of corporation law applicable to a corporation sole. They cannot, according to the English law, take personal property in succession, and their corporate capacity, in that respect, is confined to real property.'

* * *

* * *

'That the common-law corporation sole is, under our statute adopting the common law, the law in Florida to-day, seldom as it may be called into operation, there can be no doubt; and its application to this case is inescapable, and removes all doubt as to the capacity of the grantee and his successors to take the fee simple title. But whether we recognize the appellee, complainant in the court below, in his capacity as Bishop, as a corporation sole or not, the analogy to the common-law corporation sole is so complete as to bring him within the spirit and reason of the doctrine relating thereto, * * *'. (Emphasis supplied).

The above holding was reaffirmed by the Supreme Court in Willard v. Barry, 1933, 113 Fla. 402, 152 So. 411, wherein it was said:

'It is unnecessary for us to...