Reese v. Levin
| Decision Date | 11 September 1929 |
| Court | Florida Supreme Court |
| Parties | REESE et al. v. LEVIN. |
Bill in equity by Asher Levin against E. L. Reese and others, as executors of the last will and testament of George H. White deceased, and another. From two orders overruling demurrers to bill, defendants appeal.
Affirmed.
Syllabus by the Court
Purchaser on rescission of contract to purchase realty because of defect in title, is entitled to return of money paid. Where purchaser is entitled to rescission of contract to purchase realty because of defect in title, purchaser is entitled to return of money paid on purchase price.
Rescission could properly be granted under prayer for general relief in suit for declaratory decree to establish rights under contract to purchase realty. In suit for declaratory decree determining purchaser's rights under contract for purchase of realty, rescission could be granted under prayer for general relief, although there was no specific prayer for such relief, where rescission was not inconsistent with general scope and apparent purpose of bill, since, where there is prayer for special relief and general prayer, court can extend relief specially prayed for, or give such relief as case warrants.
Judicial notice is taken of unstable or fluctuating values of real estate at or about time particular contract was made. Court will take judicial notice of unstable or fluctuating values of real estate at or about time particular contract was made.
Delay of five months before submitting abstract, and further delay before beginning suit, causing longer delays, held unreasonable delay in perfecting title, entitling purchaser to rescission. Under contract for purchase of realty conditioned on seller making title good, if defective, within reasonable time, where there was delay of five months before abstract was submitted, and further delay of a month and a half before beginning suit, under Laws Ex. Sess. 1925, c. 11383, to remove cloud on title, which would cause additional delay over period of one or two years, title was not perfected within reasonable time, and purchaser was entitled to rescission and refund of deposit made.
Appeal from Circuit Court, Escambia County; A. G. Campbell, judge.
John S. Beard and R. Pope Reese, both of Pensacola, for appellants.
Watson & Pasco & Brown, of Pensacola, for appellee.
Asher Levin, in July, 1925, entered into a contract for the purchase of a certain lot in Pensacola, with E. L. Reese and wife and J. Frederick E. Wood and Julia C. White as executors of the will of George H. White, deceased. The price to be paid for the property was $25,000, of which $2,500 was paid in cash to R. P. Reese, who was attorney for the sellers, E. L. Reese and others.
The contract provided, among other things, that the remainder of the purchase price, $22,500, should be paid by the purchaser 'upon delivery of a good warranty deed conveying a good title' to the property 'to the party of the second part or his assigns.' Asher Levin was described as party of the second part.
The contract contained the following clauses:
'The parties of the first part agree at their expense to furnish an abstract of title, and the purchase of the property by the party of the second part is conditioned upon the title being good, or being made good, within a reasonable length of time.
'It is mutually agreed that the 1925 taxes shall be prorated as of date of actual transfer of the property, on basis of rate and assessment for 1924.
The contract was entered into between the parties prior to the passage of chapter 11383, Laws of Florida, passed at the extraordinary session of the Legislature, November 17 to 25, 1925, and approved by the Governor November 30, 1925, which act was designed to afford a prompt and adequate method by which the rightful owner of real property may place his own title in repose by obtaining a speedy adjudication of the effect of hostile claims or clouds. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A. L. R. 731.
In December the sellers submitted an abstract of title to the purchaser, which did not show a good title. Thereupon, on January 28, 1926, the sellers brought suit in the circuit court for Escambia county against all persons, known and unknown, to quiet the title. The suit was brought under chapter 11383, supra, and on May 13, 1926, was still pending and undetermined.
Thereupon, on the last-mentioned date, Levin exhibited his bill in chancery, setting out the facts as related above, and alleging that a controversy had arisen between the parties to the contract, in which the sellers contend that the contract requires the buyer to await the result of the suit to remove the cloud on the title, and to accept the deed when a decree shall be entered quieting the title, and the complainant, Levin, contends that he is not bound by the contract to await the result of the suit. He claims that, even if the suit should result in a decree in favor of the sellers, the decree would not become absolute before the expiration of one year from the entry thereof. See chapter 11383, § 7, supra.
It is alleged that Levin notified Reese that a reasonable time for making good the title to the property has elapsed, and that Reese declared that his clients would retain the cash payment of $2,500, and he, as custodian thereof, would pay it over to them upon the entry of the decree in their favor in the said suit and the tender of a conveyance to Levin, if the latter should fail and refuse to make the remaining payment of $22,500. There is no allegation that Levin has made a demand upon Reese for the return of the cash payment. The bill does allege that the complainant, Levin, is unable to determine what proper construction should be made of the contract of purchase with respect to his rights in the matter of whether a reasonable time has elapsed for the defendants to make good their title to the property, and particularly whether the entry of a decree in the suit to quiet title in favor of the sellers will operate and have the effect of making the title to the property good in them within the meaning of the contract, and as against the claims of all persons and particularly all unknown persons having interests in the property affected by the contract.
A copy of the bill to quiet title is attached to the bill of complaint as an exhibit.
The prayer is for a declaratory decree determining whether a reasonable length of time has passed for making good the title by the sellers; whether the complainant by the terms of the contract will be bound to treat a decree in favor of the sellers in the suit to quiet title as operating to make good the title to the property in the sellers, so as to require Levin, upon a tender of a deed to him, to accept the same and the remainder of the purchase price; and whether the complainant Levin is not entitled to have returned to him the cash payment of $2,500 and stand discharged from the contract....
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