Lassiter v. Curtiss-bright Co.

• Decision Date: 28 October 1937
• Citation: 129 Fla. 728,177 So. 201
• Parties: LASSITER v. CURTISS-BRIGHT CO.
• Court: Florida Supreme Court

177 So. 201

129 Fla. 728

LASSITER v. CURTISS-BRIGHT CO.

Florida Supreme Court, Division A.

October 28, 1937

Action for a declaratory judgment by the Curtiss-Bright Company against W. O. Lassiter. From the decree, W. O. Lassiter appeals.

Decree reformed and, as reformed, affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

John J. Lindsey, of Miami, for appellant.

William A. Lane, of Miami, for appellee.

OPINION

BUFORD Justice.

The appeal in this case is from a decree in the following language:

'This cause coming on to be heard this day upon the bill of complaint of the plaintiff, Curtiss-Bright Company, and the answer of the defendant, W. O. Lassiter, in a proceeding brought under the authorities of sections 4953 and 4954 of Compiled General Laws of Florida, 1927, and it appearing to the court that an actual and bona fide controversy exists between the plaintiff, Curtiss-Bright Company, and the defendant W. O. Lassiter and that the instrument expunged was recorded in a book designated Miscellaneous Book' kept by the Clerk of the Circuit Court of Dade County Florida, and the court having heard argument of counsel, and being otherwise advised in the premises;

'It is thereupon ordered, adjudged and decreed that the agreement for deed between the plaintiff, Curtiss-Bright Company, and Edith L. Fountain, heretofore appearing of record in Miscellaneous Book 47, at page 266, in the office of the clerk of the Circuit Court of Dade County, Florida being an unacknowledged instrument, was properly expunged from the records of the clerk of said court, and that upon the expungement thereof the title to the following described land, to-wit: Lot 11, Block 101, Country Club Estates, Section 2 a subdivision according to the plat thereof recorded in Plat Book 10, page 79, of the Public Records of Dade County, Florida, became and now is a good and merchantable title for all purposes as fully and completely as though said unacknowledged agreement for deed had never existed.

'Done and ordered in Chambers at Miami, Dade County, Florida, this the 3rd day of March, A. D. 1937.'

The decree was pursuant to a bill of complaint wherein it was sought to have the decree of the court declaring the rights of parties under the conditions shown to exist, which were as follows:

'On the 8th day of January, 1925, Curtiss-Bright Company, a Florida corporation, entered into a contract with Edith L. Fountain wherein Curtiss-Bright Company, agreed under certain terms and conditions to convey to Edith L. Fountain certain lands in Dade County, Florida, and Edith L. Fountain agreed to carry out certain obligations on her part contained in said contract and to make certain payments for the lands described and to receive a good and sufficient deed conveying same from Curtiss-Bright Company to Edith L. Fountain.

'The agreement was under seal but was not acknowledged and not entitled to record. However, it was recorded in a book in the office of the Clerk of the Circuit Court called 'Miscellaneous Records."

On the 1st day of December, 1936, Curtiss-Bright Company entered into a contract to sell certain lands described in the contract with Edith L. Fountain to the defendant Lassiter, the appellant here.

A condition of the latter contract was that Curtiss-Bright Company should deliver to the proposed vendee abstract of title showing good and merchantable title in Curtiss-Bright Company. When the abstract was delivered it showed the record of the unacknowledged agreement between Curtiss-Bright Company and Edith L. Fountain, and thereupon the attorney to whom the abstract was submitted for approval of title on behalf of the vendee, having observed the entry above referred to in the abstract, went to the record referred to and there found the record of what appeared to be a good valid, and binding contract between Curtiss-Bright Company to sell and convey the identical land to another party, Edith L. Fountain, and that on account of such record he reported that contract between Curtiss-Bright Company and Edith L. Fountain, without a showing of cancellation, as a cloud on the title. Thereupon, ...