Major Holding Corp. v. Butler

• Decision Date: 16 June 1939
• Citation: 138 Fla. 633,190 So. 15
• Parties: MAJOR HOLDING CORPORATION v. BUTLER.
• Court: Florida Supreme Court

190 So. 15

138 Fla. 633

MAJOR HOLDING CORPORATION v. BUTLER.

Florida Supreme Court, Division B.

June 16, 1939

Suit by William M. Butler against the Major Holding Corporation and another to enjoin the defendants from dispossessing plaintiff from property, to have determined the amount the named defendant was entitled to recover of the plaintiff, and to have the forfeiture of the plaintiff's lease set aside. Decree for the plaintiff and the defendant appeals.

Decree affirmed in part. Appeal from Circuit Court Dade County; Worth W. Trammell, judge.

COUNSEL

Mitchell D. Price, Charles W. Zaring, and A. Louis Mechlowitz, all of Miami, for appellant.

Shipp. Evans & Kline, of Miami, for appellee.

OPINION

PER CURIAM.

William M. Butler owned lots 16 and 17 of Peacock's Resubdivision of lots 2 and 3 of block 16 of Erickson's Addition to the City of Miami, a mortgage on which property was foreclosed by L. Godelph.

Thereafter on October 21, 1935, L. Godelph and William M. Butler entered into a contract whereby the property was leased to Butler from that date to and including September 30, 1937. The consideration for the lease was payment by the leasee of $100 on execution of the contract, $50 on November 15, 1935, and $50 on the 15th of each month thereafter up to and including September 15, 1937, and payment of all taxes, levies, liens and assessments of every kind imposed thereon. The lease also provided that at any time between August 1, 1937, and September 30, 1937, the lessee should have the option to purchase the property for $3,774,75, provided the lessee has performed all covenants and conditions of the lease, and at least ten days' notice of his intention to exercise said option is given accompanied by payment of $100; and all payments made under the lease shall be credited on the purchase price of the property, less an allowance for interest at the rate of 6%, and a mortgage shall be given for the balance due.

On August 17, 1936, William M. Butler, lessee, filed his amended bill of complaint against the Major Holding Corporation, the grantee of the property and the assignee of the lease, and D C. Coleman, as Sheriff, praying that (1) defendants be enjoined from proceeding further to dispossess plaintiff from the property, (2) that the court determine the amount the Major Holding Corporation is entitled to recover of plaintiff, and (3) that the forfeiture of the lease be set aside, the lease be reinstated and plaintiff be allowed to retain possession of the premises.

A motion to dismiss the amended bill and a motion to strike certain portions thereof were both denied by the court.

Decree pro confesso was entered against the defendant Major Holding Corporation on January 4, 1937.

Upon motion made, the court ordered the name of D. C. Coleman as Sheriff, stricken as a party defendant; and appointed Hon Claude M. Barnes as Special Master to take testimony, to make findings of fact and law and to report the same to the court.

Testimony was taken before the Special Master on November 17, 1937, and he made his report to the court recommending that the Court enter final decree in the cause in favor of plaintiff and order the property deeded to plaintiff upon his complying with the terms of the contract; and that he be allowed $50 as a Special Master's fee.

Upon final hearing before the Chancellor, on March 3, 1938, final decree was entered ordering that the decree pro confesso be confirmed and the report of the Special Master be approved; finding the equities to be with plaintiff; finding that the lease, containing an option to purchase, is a valid contract and plaintiff has not forfeited his rights thereunder, that plaintiff is entitled to possession of the property, and ordering the lease reinstated and the right of plaintiff to possession of the property confirmed and established; finding that Major Holding Corporation, at the time it acquired title to the property, had full knowledge of the lease and of the option to purchase, and that in June, 1936, plaintiff tendered to Major Holding Corporation the full amount necessary to purchase the property according to the terms of the option, which tender was refused under the illegal claim that plaintiff had forfeited his right, under the contract, dispossessed plaintiff, took possession of the property and is holding the same adversely to plaintiff; finding that the Major Holding Corporation from the illegal ouster to November 9, 1937, has collected $736.68 as rent from the property, and since said date has collected approximately $80 per month or a total of $320, which rightfully belongs to plaintiff.

The final decree ordered in effect that plaintiff be put in possession of the property, that the Major Holding Corporation issue plaintiff a good and sufficient warranty deed for the property, and plaintiff execute and deliver to Major Holding Corporation a note and mortgage on the property for $2,614.57, with interest at 6%, prepared in accordance with the provisions of the lease, which amount is to be reduced when delivery of the certified check for $133 payable to defendant is delivered to defendant and by payment of any taxes not covered in the final decree.

Petition for rehearing was denied.

Defendant took an appeal from the final decree.

A decree pro confesso has the effect of confessing only those facts which are properly alleged, but does not aid or supplement a bill which does not state a good cause of action. Keil v. West, 21 Fla. 508; see also Price v. Boden, 39 Fla. 218, 22 So. 657; Hale v. Yeager, 57 Fla. 442, 49 So. 544; Orlando v. Equitable Building & Loan Ass'n, 45 Fla. 507, 33 So. 986.

The sole purpose of this appeal then is to ascertain whether the amended bill of complaint contained allegations sufficient upon which the relief sought and granted by the final decree could be predicated.

The second amended bill alleged the execution of the lease, the terms thereof, and the assignment thereof, on May 8, 1936, to the Major Holding Corporation. The second amended bill then alleged:

'* * * that on May 8th, 1936, L. Godelph assigned said lease to the defendant, Major Holding Corporation; that prior to May 8th, 1936, the buildings located on said property became damaged and unfit for occupancy, by reason of wind storm damage suffered in November, 1935; whereupon L. Godelph failed and neglected to repair said buildings and authorized plaintiff to make necessary repairs and to deduct the costs thereof from any rentals due; that plaintiff made said repairs and defendant permitted plaintiff to retain the rental due in a sum sufficient to cover said repairs; that plaintiff further entered into an agreement with L. Godelph whereby plaintiff was relieved of the payment of City of Miami taxes at the time required in the lease, and that plaintiff was in default in the payment of said taxes with the knowledge and consent of L. Godelph; that immediately after taking the assignment of L. Godelph, the

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