Lindgren v. Van Fleet, 57-75

• Decision Date: 06 March 1958
• Docket Number: No. 57-75,57-75
• Citation: 101 So.2d 155
• Parties: A. W. LINDGREN and Anna Belle Lindgren, his wife, Appellants, v. Waller VAN FLEET, Appellee.
• Court: Florida District Court of Appeals

Page 155

101 So.2d 155

A. W. LINDGREN and Anna Belle Lindgren, his wife, Appellants, v. Waller VAN FLEET, Appellee.

No. 57-75.

District Court of Appeal of Florida, Third District.

March 6, 1958.

Rehearing Denied April 7, 1958.

Ray M. Watson, Miami, for appellants.

Talbot W. Trammell, Miami, for appellee.

GIBLIN, VINCENT C., Associate Judge.

A vital question presented by this appeal is whether an oral contract for the conveyance of the appellant husband's land, and for the relinquishment of the appellant wife's inchoate dower interest in the land, is specifically enforceable.

By its final decree (from which this appeal has been prosecuted), the court below answered the question in the affirmative.

We are impelled, however, by the provisions of section 708.07, Fla.Stat., F.S.A., and the opinions and decisions of our Supreme Court in Berlin v. Jacobs, 156 Fla. 773, 24 So.2d 717, Dixon v. Clayton, Fla.1950, 44 So.2d 76, and Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120, to the conclusion that the challenged decree is erroneous.

Counsel for the appellee argues (and the court below held) that, because the appellant husband had accepted from the appellee a part of the purchase price and had placed him in possession of the land, the statute of frauds does not militate against the specific enforcement of the contract; and that, because of the appellant wife's participation in the negotiations and her acquiescence in, and approval of, the appellant husband's actions, she is estopped, by 'equity and good conscience,' from relying on the mentioned statutory provisions.

Assuming (but without deciding), that, in the circumstances revealed by the record, the appellee could have required the conveyance to him of the appellant husband's right, title and interest, subject to the appellant wife's inchoate dower interest, and without any abatement of the purchase price, he did not offer (as did the vendees in Bland v. Knoblock, 92 Fla. 254, 109 So 415) to accept such partial performance, but insisted on his claimed right to the relinquishment of the dower interest and to complete performance. His position is predicated on the argument that the appellant wife's attitude and conduct were such that 'in equity and good conscience' she should not be permitted to invoke and rely on the provisions of section 708.07, supra.

The same argument was advanced in Berlin v. Jacobs, supra (156 Fla. 773, 24 So.2d 718), but the court rejected it, saying: 'Except for (the) statute it is quite evident that in equity and good conscience (the wife) should be required to perform the contract, but Sec. 708.07 * * * specifically provides that 'No agreement for the sale or conveyance of her real property or for relinquishment of dower, shall be specifically enforced unless it be executed and acknowledged in the form prescribed for conveyances of her real property and for relinquishment of dower'. * * * Unless a contract is so executed and acknowledged by the married woman the court is without authority or power to require specific performance of the contract.'

In Dixon v. Clayton, supra (44 So.2d 77), a married woman had accepted from a prospective purchaser a part of the purchase price and had placed him in possession of the land, yet the court held that, although 'it may well be that from a standpoint of ethics she should not escape any...