Mccrillis v. Copp

• Decision Date: 15 February 1893
• Parties: McCRILLIS et al. v. COPP.
• Court: Florida Supreme Court

12 So. 643

31 Fla. 100

McCRILLIS et al. v. COPP.

Florida Supreme Court

February 15, 1893

Appeal from circuit court, Dade county; John D. Broome, Judge.

Bill by Valentine E. McCrillis, by her next friend, S. H. Ray, and another, against James W. Copp, to enforce the specific performance of a contract to convey real estate. There was a decree dismissing the bill, and plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The enforcement of the specific performance of a contract in a court of equity is not a matter of strict legal right, but rests in the sound discretion of the court.

2. A written contract by himesteader, made before he has complied with the United States homestead law in reference to acquiring a title from the United States, to convey his homestead, is against public policy, and void, and will not be enforced in a court of equity, although a valuable consideration may have passed to the homesteader from the purchaser.

3. C made a homestead entry on certain real estate in 1879, and in October, 1884, without furnishing to the United States land office any proof of residence and improvement, as required by the United States homestead laws to prove upon homestead, and without commuting for the same by a cash purchase, entered into a bond to convey to McC., for a consideration then paid the homestead land when C. should obtain a final receipt from the United States land office or the same. Subsequent to the execution of this bond C. commuted for the homestead by cash purchase, under the act of congress of June 15, 1880 authorizing persons who had theretofore, under any of the homestead laws, entered lands properly subject to such entry or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing, to acquire such homestead entries by paying the government price therefor. Held, upon bill filed to compel C. to specifically perform his obligation in the bond to convey the land, that such contract was contrary to public policy, and a court of equity would not compel its execution.

COUNSEL Robbins & Graham and D. S. Walker, Jr., for appellants.

OPINION

MABRY J.

In this case a bill was filed in the seventh judicial circuit for Dade county to enforce the specific performance of a written contract for the conveyance of real estate. The bill alleges 'that on the 17th day of June, A. D. 1879, the respondent herein, James W. Copp, made his homestead entry No. 7,228 for lot 4, section 34, township 43 S., range 43 E., and lots 1 and 2, of section 3, township 44 S., range 43 E., containing 144.74 acres; that upon the 9th day of July, A. D. 1884, respondent received notice from the register and receiver of the U.S. land office at Gainesville that his five years of residence and cultivation expired June 17, 1884, said notice being hereto attached, and marked 'Exhibit A;' that, failing or being unable to prove up on his homestead under the homestead law, respondent purchased the said land from the government, as appears from the patent issued to the said James W. Copp, which is hereto attached, and marked 'Exhibit B;' that from an examination of said patent it will appear to your honor that the said respondent obtained title as a purchaser under the law of April 24, 1820, and April 15, 1880, and not as a homesteader. Your orators further represent unto your honor that on the 27th day of October, A. D. 1884, respondent entered into a bond to your orator, Valentine E. Jones, in the penal sum of $367.20, conditioned upon his executing a deed of said land to your orator, the said Valentine E. Jones, upon respondent obtaining from the U.S. land office his receipt for the purchase money of said land; and your orators further show that, as the consideration for the deed agreed to be delivered by respondent, your orators paid respondent the sum of $183.60, which was the full consideration agreed upon between respondent and your orators as the price of said land. The said bond for title is hereto attached, and marked 'Exhibit C.'

'Your orators further represent that their contract with respondent for the conveyance of said land was and is valid and binding contract, inasmuch as said land was obtained by purchase, as shown by the patent hereinbefore referred to; and said respondent never proved up or availed himself of any rights as a homestead settler, but bought in the land by cash purchase. Wherefore your orators say that the said respondent ought in good conscience comply with his agreement to deed to them said land, and should have done so upon receiving his receipt referred to in said bond, said receipt being hereto attached, and marked 'Exhibit D.'

'Your orators further represent that they have been in possession of said land since the date of said bond, but, although frequently requested so to do, respondent has utterly failed and neglected to execute to your orator, the said Valentine E. Jones, a deed to the said land, but has delayed and refused so to do upon frivolous pretexts, and has departed these parts, and his whereabouts is at present to your orators unknown. A letter of the said respondent, written to the agent of your orator in this transaction, is hereto attached, and marked 'Exhibit E."

The bill prays that respondent be decreed to make and deliver to Valentine E. Jones a good and perfect deed to said land in conformity to his bond, and that, if he fail to do so, a master be appointed to execute the same.

After the filing of the bill, Valentine E. Jones intermarried with J. Wilson McCrillis, and by order of court the bill was amended, and suit directed to proceed in the name of Valentine E. McCrillis, by her next friend, S. H. Ray, and in the name of the husband, McCrillis.

No service of subpoena was had on the respondent, Copp, but publication, as provided by chapter 3589, Acts 1885, was made, citing him to appear and answer the bill at a specified time. Upon the showing that the publication had been made as provided by chapter 3589, supra, a decree pro confesso was entered against the respondent. Subsequent to the entry of the decree pro confesso, the following decree, dismissing the bill, was made, viz.: 'This cause having come on to be further heard, and it appearing to the court from the bill of complaint and the exhibits thereto, that the relief therein prayed is not proper to be decreed in a court of equity, it is therefore ordered that complainants' said bill of complaint be, and the same is hereby, dismissed, with costs to said complainants to be taxed.' Complainants entered an appeal to this court from the decree dismissing the bill.

As gathered from the bill and exhibits, it appears that James W Copp, in June, A. D. 1879, made homestead entry No. 7,228 upon the land in question; and on the 27th day of October, A. D. 1884, without furnishing to the United States land office any proof of residence and improvement, as required by the United States homestead laws to prove up a homestead, or without commuting for the same by a cash purchase, sold said land to Valentine E. Jones, now Valentine E. McCrillis, for the sum of $183.60 cash, and executed a bond conditioned to convey to her the land by warranty deed when he obtained a receipt of the United States land office for payment of the purchase money of homestead entry No. 7,228. This bond, which, it is claimed, contains the contract sought by the bill to be specifically performed, acknowledges that Copp is held and bound unto Valentine E. Jones, now McCrillis, in the sum of $367.20, to be paid to her, her heirs, administrators, or assigns,...