Kozacik v. Kozacik
| Decision Date | 11 June 1946 |
| Citation | 157 Fla. 597,26 So.2d 659 |
| Parties | KOZACIK v. KOZACIK et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Stanley Milledge, judge.
W. F Parker, of Miami, for appellant.
Roscoe Brunstetter, of Miami, for John A. Kozacik, appellee.
Riley & Dressler, of Miami, for Michael E. Kaye appellee.
Michael Kozacik and John Kozacik, his son, purchased a piece of property with a hotel thereon, known as Park Hotel, as joint tenants with the right of survivorship. Each of these parties furnished approximately one-half of the purchase price. Shortly thereafter the owners leased the property to Michael E. Kaye another son of Michael Kozacik, for an agreed monthly rental of $200 to be paid in equal portions to each of the lessors. Subsequently, on April 5, 1944, the owners entered into a certain written agreement with Michael E. Kaye, which is the subject matter of this litigation.
By the terms of said agreement Michael Kozacik, as party of the first part, agreed to sell his undivided one-half interest in the property to Kaye and give a deed therefor upon the payment by Kaye of the sum of $19,750, payable $4,750 in cash and the remainder in monthly installments of $500 each, and the assumption of an outstanding mortgage on the property. By the same instrument John Kozacik, as party of the second part, gave to Michael E. Kaye an option to purchase his undivided one-half interest in the property, for the sum of $16,000, $17,000, $18,000 or $19,000, the price to depend upon whether Kaye exercised his option to purchase on or before the first day of April of the years 1945, 1946, 1947 or 1948, respectively, and the option to expire on April 1, 1948.
The agreement further provided that as of April 1, 1944, no further rents should be paid by Kaye to Michael Kozacik but that beginning upon said date the rent to be paid to John Kozacik should be increased to $150 a month and paid thereafter until the option agreement became terminated either by the exercise of the option or by its expiration in accordance with the agreement. The agreement also contained a covenant which provided that in the event of default by Michael E. Kaye of any of its terms the party of the first part might at his option re-enter the property and that thereupon the contract should be of no further force and effect either between first and third party, or second and third party. Also inserted in the agreement was the provision: 'It is the intention of all the parties that this agreement, when carried out in whole or in part, will terminate the joint tenancy and the incident of survivorship.' The contract was signed by all parties but was not executed in the presence of two subscribing witnesses, as required by Section 689.01, Florida Statutes 1941, F.S.A., for the conveyance of real property or estates or interest therein.
On May 28, 1945, Michael Kozacik died leaving a last will and testament which provided as follows:
The widow of the decedent, as personal representative of the estate, claims as assets of the estate the undivided one-half interest of Michael Kozacik in the hotel property and the balance of the sales price of said interest due to the deceased from Michael E. Kaye. John Kozacik contends that because of the failure of the parties to execute the agreement in the presence of subscribing witnesses as required by law the instrument is ineffectual to sever the joint tenancy created by the original deed to himself and his father or to extinguish his right of survivorship in or to his father's interest; and that consequently he is entitled to the property and to collect the balance of the purchase price due from Michael E. Kaye.
The facts which we have delineated are contained in a bill for declaratory judgment filed in the circuit court of Dade County by John Kozacik against the widow, individually and as personal representative, and the heirs of the decedent, wherein the plaintiff prays that the court will decree that he is the owner of the interest of Michael Kozacik in and to the hotel property, by right of survivorship, and entitled to receive from Michael E. Kaye, the purchaser of said interest, the balance of the purchase price, and to give a warranty deed conveying said interest to Michael E. Kaye when said purchase price has been paid.
Answers were filed to the bill of complaint, and thereafter, upon a written stipulation of facts, the chancellor entered his decree finding that the plaintiff, John Kozacik, was the owner by right of survivorship of the interest in the property that was held by Michael Kozacik at the time of his death, subject to the rights of Michael E. Kaye under his agreement for sale and option, and had full right and authority to have and receive from said Michael E. Kaye the balance of the purchase price and to execute a deed of such undivided one-half interest in the property upon payment in full; and that neither the widow individually or as administratrix, nor any other defendant had any right, title or interest in the hotel property or...
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