Rundel v. Gordon

• Decision Date: 03 January 1927
• Parties: RUNDEL v. GORDON et al.
• Court: Florida Supreme Court

111 So. 386

92 Fla. 1110

RUNDEL v. GORDON et al.

Florida Supreme Court, Division A.

January 3, 1927

Suit by Morgan Rundel against Lucy C. Gordon, as executrix of the will of Horace Gordon, deceased, and others, for specific performance. From an order sustaining a demurrer to the complaint and dismissing it, complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Bill for specific performance and to declare trust in land already conveyed by vendor to third person should clearly allege essential elements of contract and third person's knowledge of existence and terms thereof. A bill for specific performance of a contract for the sale of land and to declare a trust in the land for the benefit of the vendee, where title to the land has been conveyed by the vendor to a third person, should contain clear allegations as to the essential elements of the contract sought to be enforced, as well as the title holder's knowledge of its terms as well as existence.

Contract sought to be specifically enforced should be definite, and its enforcement practical and equitable. A contract which is sought to be specifically enforced in equity should be definite and its enforcement practical and equitable.

Specific performance is granted of grace, and rests in discretion. The remedy by specific performance is granted of grade, and rests in discretion.

To reverse decree refusing specific performance, clear showing of chancellor's error must be made. To reverse the decree of a chancellor refusing to order specific performance of a contract, it must appear to the appellate court clearly that the chancellor has erred.

To obtain specific performance of contract for sale of realty terms thereof must be expressed with reasonable certainty. Where it is sought to enforce in equity a contract for the sale of land, it is essential that the terms of the contract shall be expressed with reasonable certainty.

Contract for sale of land attached to bill for specific performance will be read in connection with bill to determine existence of grounds for relief. Where a bill in equity for the specific performance of a contract for the sale of land has attached to it the contract sought to be enforced, and which is made a part of the bill, the contract will be read in connection with the allegations of the bill to determine the existence of any grounds for relief.

Written memoranda to take contract for sale of land out of statute must show essential elements of contract. When written memoranda are relied upon to take a contract for the sale of land out of the statute of frauds, the writings themselves should show the essential elements of the contract; such matter cannot be left to oral evidence.

Purchaser seeking specific performance where vendor's wife did not join in contract should allege lack of knowledge of wife's interest, and ask for conveyance of what husband can give with abatement of price. When the vendee in a contract for the purchase of lands in which the vendor's wife has an inchoate dower interest, but does not join in the contract of sale, seeks specific performance of the contract by both husband and wife, he should allege in the bill that at the time of entering into the contract, he either did or did not know of the wife's interest, as the fact might be, and frame the prayer of the bill for conveyance of what the husband can give with abatement of the price or not according to the fact.

Appeal from Circuit Court, Hillsborough County; F M. robles, judge.

COUNSEL

Kelly and Sutton, of Tampa, for appellant.

Gibbons & Gibbons, Horace C. Gordon, and Sparkman & Knight, all of Tampa, for appellees.

OPINION

ELLIS C.J.

This is an appeal from an order sustaining a demurrer to a bill of complaint and dismissing the bill.

The complainant, Rundel, exhibited his bill of complaint against Horace C. Gordon and Lucy C. Gordon, his wife, and L. L. Buchanan for the specific performance of an alleged leged contract for the sale of certain land in Hillsborough county made between Horace C. Gordon and the complainant, and to declare the existence of a constructive trust for the complainant's benefit in the lands as held by L. L. Buchanan, to whom Gordon and his wife conveyed after the complainant acquired his alleged interest in it under the contract with Gordon.

Horace C. Gordon died in June, 1924, and, upon the suggestion of his death, Lucy C. Gordon, as executrix of his will, was substituted as defendant in his place.

A demurrer was then interposed to the bill on July 7th following, and an order sustaining the demurrer and dismissing the bill was entered from which the appeal was taken.

The bill alleges that in May, 1923, Horace Gordon entered into a written agreement with the complainant to sell the land, which was described in the bill. It is alleged that Gordon agreed to sell the land for the sum of $40,000, of which $5,000 was to have been paid in cash, and the remaining $35,000 in the following manner:

'$30.000 of the said balance of the purchase price to bear interest at the rate of 8 per cent. per annum and the remaining $5,000 of the said purchase price to be paid without imposition of interest as by the said agreement hereto attached will more fully appear.'

It is alleged that the complainant accepted the 'terms, conditions, and provisions contained in the said agreement herein before referred to and that he has always been willing and ready to comply with the terms of the said agreement on his part to be performed, and has complied up to the date of the filing of the bill of complaint, with all of the covenants, terms, and conditions on his part to be performed'; that he is 'ready, eager and willing' to comply with the terms of the contract, and to pay to the defendant the 'moneys mentioned in said contract and agreed by him to be paid upon delivery of a deed to the said premises as in the said contract provided for, upon the delivery by the said defendant to the said First Savings & Trust Company of Tampa of a good and sufficient warranty deed for the said premises according to the said agreement'; that under the terms of the agreement the complainant was to pay $500 in cash as part of the purchase price, and, upon the execution and delivery of a deed of conveyance of the land to the First Savings & Trust Company of Tampa, the sum of $5,000 in cash; that $500 has been paid.

It is alleged that the defendant Gordon agreed to furnish an abstract of title to the land, to convey the same by warranty deed, and, if there should be a default in the title, to remedy the same by suit to 'quiet title or otherwise'; that Gordon furnished the abstract of title, the complainant accepted it, and notified Gordon of his willingness to accept the title which Gordon had, and requested him to convey the land to the Savings & Trust Company mentioned, and the complainant would carry out the covenants upon his part assumed; that the Savings & Trust Company was willing to accept the trust and hold the same under the terms and conditions of the contract, and 'to do those things set out and recited in the said contract to be done by the said trustee in the premises.'

Buchanan is made a defendant, because it is alleged that he acquired a deed to the property from Gordon and his wife subsequently to the making of the agreement with knowledge of its existence and all its terms.

The bill alleges that the trust company named was, under the agreement, to hold the title to the land for the complainant until the entire purchase price had been paid. A part of the second paragraph of the bill contains the following words:

'All of which will more fully appear by a copy of the said contract or agreement which is hereto attached and made a part of this bill of complaint.'

The eighth paragraph of the bill contains the allegation that the complainant prepared a plat of the lands for the purpose of offering the various lots or tract for sale, as provided in the agreement, and that he entered 'into and upon the premises and did make the improvements in accordance with the terms and conditions of the said agreement, and did in every way show his willingness to comply with all the terms of the said contract and to fully perform the same, and that he has fully performed all of the conditions and covenants of the said contract on his part to be performed.'

There are copies of two letters attached to the bill; one dated May 14, 1923, at Tampa, Fla., addressed to Judge H. C. Gordon, and signed by Morgan Rundel, the other dated May 17, 1923, addressed to Mr. Morgan Rundel, acknowledging receipt of the check for $500 'to apply on purchase price' of the land, and signed by Horace C. Gordon. Neither letter is marked as an exhibit to the bill, and neither is identified by the language of the bill or any sign upon the letter as the contract or memorandum of the agreement sought to be enforced.

The language of the bill, considered without reference to either letter, is not sufficiently definite in setting out the terms of the alleged agreement to justify a prayer for specific performance. Taking the language of the bill only, no contract could be formulated which could be said with any degree of accuracy to have been the contract entered into between the parties. The parties and the description of the land and price to be paid are alleged with sufficient definiteness, and that the land was to be conveyed to a trust company to be held in trust until the agreement was fulfilled is also clear; but it is apparent from the allegations of the bill that many other things were to be done by complainant and defendant and the trustee.

The trustee was to accept the trust 'under the terms and conditions of the said contract, and to hold the same in...