De Huy v. Osborne
| Decision Date | 25 September 1928 |
| Parties | DE HUY v. OSBORNE et ux. |
| Court | Florida Supreme Court |
Suit by F. M. De Huy against Joseph B. Osborne and wife. From a final decree dismissing the bill, complainant appeals.
Affirmed.
Syllabus by the Court
Obligation to deliver 'good marketable title of record' is not fulfilled when validity of title depends on material facts not deducible of record with reasonable certainty. A vendor's obligation to deliver a good marketable title of record is not fulfilled when the validity of the title tendered depends upon material facts not susceptible of reasonably definite ascertainment of proof by record evidence, at any and all times, by those who may need to prove them for the protection of the title, or, in other words, when the title tendered is not deducible of record with reasonable certainty.
Delay in asserting otherwise meritorious claim may render it inequitable to grant specific performance. Where a party is not reasonably diligent under all the circumstances in asserting his claim for specific performance, the delay may render it inequitable to enforce his claim, though it is otherwise meritorious.
Purchaser of hotel property, who waited seven months after notice of vendor's inability to perform, held barred by laches from specifically enforcing contract. Where a contract for the sale of lands became unilateral as to remedy and enforceable by the purchaser only, due to the fact that the vendors failed to tender a good title of record as they had contracted to do, the purchaser having never been in possession, but having waited seven months after he was on notice that the vendors would not further perform, and until after the property, a hotel, had been filled by the vendors with guests for the winter season, and during which delay of seven months the vendors, who remained in possession, had substantially improved the property and increased its value with the knowledge and apparent acquiescence of the purchaser, the vendors during that time being unable either to enforce their contract or to sell the property to others while the purchaser occupied the status of equitable owner entitled to any appreciation in value and able to enforce the contract or not at his election, held, that the purchaser is barred by laches, even though time was not of the essence of the contract.
Existence of laches barring specific performance must be deduced from facts of particular case. In specific performance, no general rule, applicable to all cases, as to what will and what will not constitute laches, can well be formulated. The existence or absence of laches in a given case must be deduced from the facts of that particular case upon consideration of all the circumstances involved.
Appeal from Circuit Court, Volusia County; J. J Dickinson, judge.
F. W. Pope, of Daytona Beach, and Landis, Fish & Hull and Erskine W. Landis, all of De Land, for appellant.
M. G. Rowe, of Daytona, and Massey, Warlow & Carpenter, of Orlando, for appellees.
This is a suit in equity seeking the specific performance of a contract to convey certain land on which is located a hotel known as the Osborne House in the city of Daytona Beach together with all furnishings in said hotel contained. The purchaser, De Huy, was complainant below and is appellant here. After the pleadings were settled and the testimony of the parties taken, the chancellor entered a final decree dismissing the bill. This appeal is from that decree.
The vendors resisted the suit on the ground that complainant is guilty of laches in asserting his rights. To this the complainant purchaser replied that the vendors first breached the contract in that they never tendered complainant a marketable title of record to the lands, and the defendants, thus being in continuing default themselves, cannot put the complainant in laches until the defendants have purged their own default.
The contract was executed on April 14, 1923. Amongst other things it contained the following provisions:
'And the said party of the second part (the purchaser) agrees to buy the above-described property, and to pay therefor to the said parties of the first part, the sum of forty thousand ($40,000.00) dollars in the manner following: Five hundred ($500.00) dollars cash, upon the signing of this agreement, the receipt whereof is hereby acknowledged by the parties of the first part; nineteen thousand five hundred ($19,500.00) dollars upon delivery of warranty deed properly executed, and abstract showing good and merchantable title to the property herein described, in parties of the first part, which said title as shown by said abstract shall be approved and passed by the attorney for the party of the second part before the acceptance of said deed, and the payment of nineteen thousand five hundred ($19,500.00) dollars, and the balance of twenty thousand ($20,000.00) dollars to be paid, * * * etc.'
Time was not of the essence of the contract. On May 1, 1923, the purchaser's wife demanded possession, but possession was then refused by the vendors because only $500 had been paid, and the sale had not been fully consummated. The purchasers were never at any time in possession. Abstracts were thereafter furnished by the vendors, and on May 9, 1923, the purchaser's attorney rendered his opinion that the title as shown by the abstracts was not a good merchantable title of record, pointing out the deficiencies in the record title upon which he based his conclusions. Soon thereafter the purchaser visited the vendors and told the latter that he was willing to call the trade off, provided the vendors would pay the expense the purchaser had been put to, but the vendors declined to pay the expense, whereupon the purchaser said, 'Very well, we will go ahead with the trade then; I am perfectly willing.'
Negotiations then ensued between the attorneys for the parties, as a result of which the vendors procured two quitclaim deeds from other persons curing certain of the defects pointed out by the purchaser's attorney. The vendors' attorney then rendered an opinion on the title, pointing out that the defects specified by the purchaser's attorney were based on ancient matters which were not of any consequence, and calling attention to the fact that the vendors had been in exclusive and peaceable possession for 27 years. The vendors refused to remedy the remaining matters claimed by the purchaser to be defects in the record title.
On June 22, 1923, the vendors executed and left with their attorneys a warranty deed conveying the property to the purchaser, which deed, on that day or the next, was tendered by the vendors' attorney to the purchaser's attorney, the former then advising the latter that the vendors 'had made the only and last move for them to make and that the next move was the complainant's (purchaser's) move.' While not expressly rejected in terms, the deed was not then nor thereafter accepted by the purchaser.
About June 28, 1923, the vendors left the city of Daytona for a vacation, returning about September 5th or 6th, resuming their residence in the property in question. The purchaser also left on a vacation the latter part of June, returning during October.
During the latter part of August, 1923, the vendors wrote their attorney in Daytona to the effect that, if the purchaser had not accepted the deed, they did not care to go ahead with the deal. The vendors' attorney communicated these instructions to the purchaser's attorney and notified the latter that the deed would not be delivered.
Beginning about November 1, 1923, the vendors began improvements on the property, completely painting the hotel on the outside and partly on the inside, at a cost of about $600, renovated the hotel, and got it ready for business, and purchased certain linen, carpets, and fuel for the winter season at a cost of about $400, aggregating 'something over $1,000,' after which the vendors opened up the hotel for business. While the improvements were being made, the purchaser passed by the property frequently, but the record fails to show that he took any action in regard thereto.
On December 20, 1923, the purchaser's attorney wrote the vendors that, unless steps were taken to clear the title, the purchaser would take steps to compel the vendors to comply with the contract. The vendors took no action, and on January 24, 1924, the purchaser tendered the second payment of $19,500, and a note and mortgage evidencing and securing the remainder of the purchase price, which tender was declined, the vendors then stating that they had 'considered the deal off for some time.' At that time the hotel was filled to capacity with guests. On the same date this suit was instituted.
The above-quoted provisions in the contract contemplated, not merely that the title of the vendors shall be a 'good merchantable title,' but that the abstract shall show such a title in the vendors. An abstract is an epitome of the record evidence of title. It is evident therefore that the parties contracted with reference to the record title. 2 Warvelle, Vendors, 764; Maupin Market. Tit. (3d Ed.) 25, and cases cited. That such was the case is emphasized by the further provision of the contract that, 'in the event of the title asshown by the abstract being defective, the vendors agree to have such defects remedied without delay in manner satisfactory to the purchaser.' Such an undertaking is not fulfilled by the tender of a title resting partly upon record evidence but also depending in material respects upon matters in pais, such as adverse possession. Barclay v. Bank of Osceola County, 82 Fla. 72, 89 So. 357. The...
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