Murphy v. Hohne

• Decision Date: 31 March 1917
• Citation: 74 So. 973,73 Fla. 803
• Parties: MURPHY v. HOHNE.
• Court: Florida Supreme Court

74 So. 973

73 Fla. 803

MURPHY v. HOHNE.

Florida Supreme Court

March 31, 1917

On Application for Rehearing, April 19, 1917.

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Bill by James H. Murphy against Emmett Hohne. Demurrer to bill sustained, and complainant appeals. Order affirmed.

Syllabus by the Court

SYLLABUS

Applications for the enforcement of specific performance of contracts for the sale of real estate are addressed to the sound judicial discretion of the chancellor. Such discretion is controlled by the provisions and principles of law and equity applicable to the particular facts and circumstances; and, unless it clearly appears that the chancellor has erred in his decree in refusing a specific performance, it will not be disturbed on appeal.

The enforcement by a court of equity of a specific performance of a contract is not a matter of right in either party to such contract, but a matter for the exercise of a sound judicial discretion by the court, and should only be exercised when a decree for specific performance would be strictly equitable as to all the parties under the facts as they exist.

Improvements afford no independent ground for specific performance unless they are both valuable and permanent and are warranted by the contract.

An enforcement in equity of the specific performance of a contract to convey real estate is not a matter of right excent as such enforcement may be essential to the maintenance of a legal right to which the movant is clearly and equitably entitled.

COUNSEL Hilton S. Hampton and Fred J. Hampton, both of Tampa, for appellant.

Chas. B. Parkhill, of Tampa, for appellee.

OPINION

WHITFIELD J.

The bill of complaint herein is as follows:

'James H. Murphy, by his solicitor, Hilton S. Hampton, brings this his amended bill of complaint against Emmett Hohne, and thereupon your orator complains and says: That on the 18th day of June, 1915, the defendant was seised and possessed of the following premises lying in Hillsborough county Fla.: Lots 1, 2, and 3 of block 3 of Luna Park, as per revised map of the same recorded in the records of Hillsborough county, Fla. And desiring to sell the same to the complainant, thereupon the complainant then and there agreed to pay the sum of $449 in cash, and the complainant further agreed to assume and pay all taxes now due and owing on said premises, together with three paving certificates, one for $116.15, another for the same amount and a third for the sum of $175.20, together with the taxes thereon amounting to approximately the sum of $150, and further agreed to furnish an abstract at a cost of $21.50.

'And the said defendant agreed for the consideration above named to execute and deliver a warranty deed of conveyance conveying the property to your orator, clear of incumbrances, save and except the taxes and paving above specified, and in pursuance of said agreement your orator then and there paid to the defendant $50 cash, and was then and there let into the possession of the property, and proceeded to improve the same; that after the consummation of said agreement the defendant stated to your orator that he had a wife who was in Brewton, Ala.; therefore he could not immediately deliver a deed, but, having previously given your orator a receipt, which is attached to this bill as a part of the same and marked Exhibit A, agreed that he would take with him a warranty deed and would have the same executed in Brewton, Ala., would procure his wife's signature and separate acknowledgment to the same, and would send it to the American National Bank of Tampa, Fla., at which time your orator was to pay the balance of the purchase price, amounting to $289.

'Your orator further represents that at the time of purchase your orator agreed to pay the defendant a price then considered by your orator in excess of the value of the land, for the reason that your orator's wife has become very much attached to said lot and desired the same for a home by reason of its location, and has frequently begged your orator to ascertain the owner of the same and purchase it.

'Your orator further represents that, although he has paid the part of the purchase price demanded, has been let into possession of the said property and is now in possession of the same, has expended divers sums of money in improving said property, in grubbing, grading, and clearing the same for building, has purchased the abstract as above specified, has done all things on his part agreed to be done and performed, and is ready, willing, and able to carry out all conditions, payments, and stipulations on his part agreed to be done and performed, yet the defendant, notwithstanding the premises and the said payments, but with a fraudulent design to extort the payment of additional money from your orator, in bad faith and with the purpose of escaping his just obligations, has refused to make and execute and deliver said deed, and, as the defendant is insolvent, your orator has been compelled, having no other remedy save in a court of equity, to file this bill of complaint.

'Your orator further represents that the said complainant is now the holder of the legal title to the foregoing property, and same is clear of incumbrance, save and except the taxes and paving certificate, which under the agreement of purchase your orator has assumed as part consideration, and your orator is ready, able, and willing to make said payments, and hereby offers and tenders to pay the balance of the purchase price upon tender of a deed in accordance with the contract of the parties.

'The premises considered, your orator prays:

'(1) That the said Emmett Hohne,...