Oyama v. Oyama

• Decision Date: 02 June 1939
• Citation: 138 Fla. 422,189 So. 418
• Parties: OYAMA v. OYAMA et al.
• Court: Florida Supreme Court

189 So. 418

138 Fla. 422

OYAMA v. OYAMA et al.

Florida Supreme Court, Division A.

June 2, 1939

Suit by Thomas Oyama against Annette Oyama and others to cancel a deed. From an order dismissing an amended bill of complaint plaintiff appeals.

Decree in accordance with opinion. Appeal from Circuit Court, Volusia County; H. B. Frederick, judge.

COUNSEL

Chas F. Wells, of Daytona Beach, and Hilburn & Merryday, of Palatka, for appellant.

B. F Brass, of Daytona Beach, for appellees.

OPINION

BUFORD Justice.

This appeal brings for review an order dismissing a second amended bill of complaint with prejudice. It was sought by this suit to cancel a deed of conveyance made to Annette Oyama and mortgage made to Alma Carlton as Trustee for the use and benefit of Annette Oyama, both of which were made and executed pursuant to a certain agreement dated August 9 1937, between Thomas Oyama and Annette Oyama as follows, to-wit:

'This Agreement, Made and entered into on this Ninth day of August, A. D. 1937, by and between Thomas Oyama, party of the first part, and Annette Oyama, party of the second part, both of Daytona Beach, Volusia County, Florida.

'Witnesseth:

'That for and in consideration of the sum of Ten ($10.00) Dollars, lawful money of the United States of America in hand paid by each of the parties hereto unto the other at or before the execution and delivery of this agreement and in consideration of the premises and agreements hereinafter set forth, and in consideration of other good and valuable considerations mutually moving between the parties hereto, the existence of which is hereby mutually acknowledged by said parties, the said parties hereto covenant and agree as follows: to-wit:

'1. The said party of the first part covenants and agrees and hereby acknowledges that within and during a period of ninety days last preceding the date of this agreement he has violated and breached his marriage vows and obligations in such form and manner as to entitle the said party of the second part to an absolute divorce from him under the Laws of the State of Florida and elsewhere; that the said party of the second part has discovered and been advised of the conduct of the said party of the first part consisting of such violations and breaches and has not condoned the same either in whole or in part, and that on account of such violations and breaches the said party of the second part has fully, finally, conclusively and unalterably determined to secure and procure an absolute divorce from the said party of the first part.

'2. The said party of the second part covenants and agrees that the matters and things set forth in the first paragraph hereof are true, and that she has employed B. F. Brass attorney at law, of Daytona Beach, Florida, to advise with her concerning said matters, to advise and direct her and negotiate for her in the making of this agreement, and to effectuate the same, and to institute and conclude with all reasonable and convenient speed a suit for absolute divorce for her against the said party of the first part, and all with the knowledge and consent of the said party of the first part.

'3. It is mutually covenanted and agreed by and between the parties hereto:

'A. That the said party of the first part simultaneously with execution and delivery of this agreement is executing (joined by the said party of the second part), and delivering to the said party of the second part, a warranty deed conveying to her all properties owned by the said party of the first part and located in Block 7, Rogers Seabreeze, according to a plat thereof duly recorded in the Public Records of Volusia County, Florida, (which properties have an appraised and agreed value of Thirty-nine Thousand Five Hundred ($39,500.00) dollars, and at the same time is executing and delivering to Alma Carlton, as Trustee, of Daytona Beach, Florida, his negotiable promissory note payable to her order in the principal sum of Fifty three Thousand Five Hundred Dollars ($53,500.00) payable on or before fifteen (15) years from date, and bearing interest at the rate of five per cent per annum, payable quarterly from date, and at the same time is executing (joined by the said party of the second part), and delivering to the said Alma Carlton, as Trustee, a first mortgage securing payment of said promissory, and covering Lots 20, 21, 22, 23 and 24, Block 5, Rogers Seabreeze, and certain personal property.

'B. That the said Thomas Oyama has represented and does hereby covenant and agree that all of the properties described in said deed and in said mortgage are free and clear of all incumbrances, save and except only taxes, assessments, leases and tenancies.

'C. That the said party of the first part covenants and agrees that said warranty deed and said note and mortgage are being executed and delivered by him as and for and in lieu of support money, maintenance, alimony, dower rights and any and all other rights, claims or demands of any nature or character whatsoever (except the right of divorce); past, present and future, which the said party of the second part now has or hereafter can or may have against the said party of the first part and/or his properties or estate, and as and for a full, complete and final settlement of the same.

'D. That the said party of the second part covenants and agrees that she is accepting the execution and delivery of said warranty deed and said note and mortgage as and for and in lieu of support money, maintenance, alimony, dower rights, and any and all other rights, claims or demands (except the right of divorce) of any nature or character whatsoever; past, present or future, which she now has or hereafter can or may have against the said party of the first part and/or his properties or estate, and as and for a full, complete and final settlement of the same.

'E. That the said Alma Carlton, as Trustee, shall hold said not and mortgage for the use and benefit of the said party of the second part, and, upon the said party of the second part securing and procuring the divorce hereinbefore referred to, shall thereupon transfer, assign and set over unto the said party of the second part said note and mortgage, and thereupon the said party of the second part shall own, have and hold said note and mortgage, with all the rights and benefits thereof and therefrom, as and for her own sole and absolute property, and in the event of the death of the said Annette Oyama prior to her securing and procuring such divorce, thereupon the said Alma Carlton as such Trustee, shall transfer, assign, setover and deliver said note and mortgage to such person or persons as may be entitled to the same under and by virtue of and in accordance with the terms and provisions of the Last Will and Testament of the said party of the second part.

'F. That in making of this agreement in making or arriving at the settlement herein set forth the parties hereto have taken into consideration any right, title, interest claims or demands of any nature or character whatsoever which the said party of the first part may have in and to any properties or the estate of the said party of the second part, and that this agreement and settlement herein set forth is based upon such accounting and consideration, and the said party of the first part hereby acknowledges that he has no right, title, interest, claims or demands of any nature or character whatsoever against the said party of the second part and/or her pro-properties or estate.

'4. It is further mutually covenanted and agreed by and between the parties hereto that any and all costs, charges and expenses heretofore or hereafter incurred or sustained by the said party of the second part in connection with or as a result of said breach and violations, including the costs charges and expenses of investigations, detectives, traveling expenses, and that the costs, expenses, charges and fees of the said B. F. Brass for services heretofore or hereafter rendered to the parties hereto, either or both, in connection with all the aforesaid matters and things, whether referred to herein or not, up to...