Markell v. Hilpert

• Decision Date: 05 December 1939
• Citation: 192 So. 392,140 Fla. 842
• Parties: MARKELL et al. v. HILPERT et al.
• Court: Florida Supreme Court

192 So. 392

140 Fla. 842

MARKELL et al. v. HILPERT et al.

Florida Supreme Court

December 5, 1939

En Banc.

Suit by Anna I. Hilpert, a widow, and others, against Frank E Markell, a widower, and others to have a deed executed by plaintiffs to defendants declared a mortgage. From decree for plaintiffs, the defendants appeal.

Affirmed. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

Dickinson & Dickinson and Troy C. Musselwhite, all of Orlando, for appellants.

Giles &amp Gurney and Maguire & Voorhis, all of Orlando, for appellees.

OPINION

PER CURIAM.

The parties in this opinion will be referred to as plaintiffs and defendants as they appeared in the lower court. On June 15 1931, the plaintiffs executed and delivered to the defendant Frank E. Markell, a deed conveying certain valuable business property situated in the City of Orlando. The deed is, viz:

'This Indenture, Made the fifteenth day of June, in the year of our Lord one thousand nine hundred and thirty-one, Between Anna I. Hilpert, a widow and unmarried and Charles R. Hilpert, Minnie P. Hilpert, his wife, of the County of Orange and State of Florida, of the first part and Frank E. Markell, of Connellsville, Pennsylvania, of the second part.

'Witnesseth, that the said parties of the first part for and in consideration of the sum of Ten Dollars and other valuable considerations, lawful money of the United States of America, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm unto the said party of the second part, and his heirs and assigns forever all that certain lot, tract or piece of land lying and being in the County of Orange and State of Florida, described as follows:

'Beginning at the Northwest corner of Lot Four (4) of Block Twenty-nine (29) of R. R. Reid's Addition to Orlando, Florida, as recorded in Plat Book C, pages 62-3, Public Records of Orange County, Florida, run South 133.71 feet, East 100 feet, North 133.71 feet, West 100 feet to point of beginning.

'Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, And Also all of the estate, right, title, interest, dower and right of dower, separate estate, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in and to the same and every part and parcel thereof, with the appurtenances; To Have And To Hold the above granted, bargained and described premises, with the appurtenances, unto the said party of the second part his heirs and assigns to his own proper use, benefit and behoof forever.

'And the said parties of the first part, for themselves and their heirs, executors and administrators, do covenant, promise and agree to and with the said party of the second part, his heirs and assigns, that the said parties of the first part at the time of the sealing and delivery of these presents are lawfully seized in fee simple of a good, absolute and indefeasible estate of inheritance of and in all and singular the above granted, bargained and described premises, with the appurtenances thereunto belonging, and they have good right, full power and lawful authority to grant, bargain, sell and convey the same in the manner and form aforesaid. And that the said party of the second part, his heirs or assigns, shall and may at all times hereafter peaceably and quietly have, hold, use, occupy, possess and enjoy the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction or disturbance of the said parties of the first part, their heirs and assigns, or any other person or persons lawfully claiming or to claim the same. And that the same are now free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, Judgments, taxes, assessments, and incumbrances of what nature and kind soever, including all Federal income and Federal estate taxes, whether levied or assessed, for which said property shall or might become liable.

'Subject to a lease dated August 1st, 1929, to Seaboard Oil Company, for a term of 3 years covering the following part of said property: Begin at Northwest corner of said Lot, run thence south to the westerly projection of the south line of the building known as No. 59 North Orange Avenue, thence east along the south line of said building and its continuation approximately 100 feet to the east line of the Hilpert property, thence north parallel to Orange Avenue to the north line of said lot, thence West to the point of beginning.

'Taxes for the year 1931 to be prorated as of June 15th, 1931, on the basis of 1930 assessment.

'And the said parties of the first part, for themselves and their heirs, the above described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, against the said parties of the first part, and their heirs, and against all and every person or persons whomsoever lawfully claiming or to claim the same, or any part thereof, shall and will warrant and by these presents forever defend.

'In Witness Whereof the said parties of the first part have hereunto set their hands and seals the day and year above written.

'Anna I. Hilpert [Seal.]

'Charles R. Hilpert [Seal.]

'Minnie P. Hilpert [Seal.]

'Signed, sealed and Delivered in the Presence of Us:

'Veda C. Howard

'Ethel B. Porter'

The grantee in the above deed, joined by his wife, executed and delivered to the grantors, the plaintiffs below, some three or four days thereafter an option to repurchase the lands described in the deed and the option is, viz:

'This Agreement, Made and entered into by and between Frank E. Markell and Kate S. Markell, of Connellsville, Pennsylvania, parties of the first part, and Anna I. Hilpert, a widow and unmarried, and Charles R. Hilpert and Minnie P. Hilpert, his wife, of Orlando, Orange County, Florida, parties of the second part.

'Witnesseth; That the parties of the first part, for and in consideration of the sum of Ten ($10.00) dollars, and other valuable considerations, to them in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, do hereby grant and give unto the parties of the second part, their heirs, executors, administrators and assigns, an option to purchase the following described real estate in Orange County, Florida, to-wit:

'Beginning at the Northwest Corner of Lot Four (4) of Block Twenty-nine (29) of R. R. Reid's Addition to Orlando, Florida, as recorded in Plat Book C, pages 62-3, Public Records of Orange County, Florida, run South 133.71 feet, East 100 feet, North 133.71, West 100 feet to point of beginning: at and for the price of Eighty-six Thousand and No/100($86,000.00) Dollars cash.

'On the parties of the second part exercising said option, and making payment, the first parties will deliver a good and sufficient warranty deed, free and clear of all incumbrances, to said property, together with Abstract of Title.

'In the event the parties of the second part exercise this option, the taxes for the year in which same is exercised shall be prorated, the first parties paying up to the time of the closing of the transaction, and the second parties for the remainder of that year; said taxes to be prorated on the basis of the previous year's assessment.

'It Is Agreed by and between the parties hereto that the second parties can exercise this option by notice to Frank E. Markell, and payment to him of the said Eighty-six Thousand and No/100 (86,000.00) Dollars on delivery of said deed, which two are to be concurrent, or the second parties may deposit said amount of money in Florida Bank at Orlando, Orlando, Florida, for the first parties, to be delivered on the delivery of the warranty deed aforesaid, together with abstract showing merchantable title, and the delivery of the deed to be at Florida Bank at Orlando, Orlando, Florida, in either instance.

'This option shall expire at two o'clock P. M., on the 15th day of June, A. D. 1933.

'Time is the essence of this agreement.

'In Witness Whereof the parties of the first part have hereunto set their hands and seals, this the 18th day of June, A. D. 1931.

'Frank E. Markell [Seal.]

'Kate S. Markell [Seal.]

'Signed, sealed and Delivered in Presence of Us:

'R. S. Matthews

'Josephine Richey.'

For a considerable length of time prior to June 15, 1931, plaintiffs below were the owners of the real estate, above described, but the same was subject to mortgages, except thirty feet on the corner, but uncancelled tax certificates appeared against the entire tract. A. T. O'Neill, a real estate broker, maintained an office on part of the property, supra, and Charles R. Hilpert applied to him for assistance in obtaining a loan of $60,000 with which to refinance all the mortgages and tax lien indebtedness then existing against the property.

Mr O'Neill approached the defendant, Frank E. Markell, for a loan of $60,000 and offered as security therefor the real estate described in the deed. The defendant made it known that he was not interested in making the loan. The defendant and his partner, Mr. Jull, subsequently offered $88,000 in cash and certain property located at...