Savage v. Horne
| Decision Date | 18 July 1947 |
| Citation | 159 Fla. 301,31 So.2d 477 |
| Parties | SAVAGE et al. v. HORNE et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Marion County; F. R. Hocker judge.
James M Smith, Jr., of Ocala, and Sam Bucklew (of Hardee & Bucklew), of Tampa, for appellants.
Greene & Ayree, of Ocala, for appellees.
On March 31, 1943 Jack Horne, joined by his wife Celeste Horne, signed an agreement to sell L. F. Lang 1,340 acres of land situated in Marion County, Florida, for the sum of $16,750. The sum of $1,000 was paid when the contract was signed and the purchaser paid on April 15, 1943, under the contract the further sum of $5,000, when the seller placed the purchaser in possession of the property. The contract then made it the duty of the seller to furnish the purchaser with an abstract of title showing a merchantable title to the land.
Additional pertinent provisions of the contract are viz.:
'After payment of the sum of Five Thousand Dollars ($5,000.00) hereinabove provided for no or before April 15, 1943, the Purchaser shall be placed in actual possession of said lands. Promptly after receipt of said Five Thousand Dollars ($5,000.00) the Seller will place his order with The Florida Title and Abstract Company for complete abstracts of title covering said lands certified to date and deliver them to the Purchaser as soon as possible thereafter. The Purchaser shall have forty-five (45) days after the delivery of said abstract for examination thereof and if he accepts the title the Seller shall thereupon execute or procure the execution and delivery of good and sufficient warranty deed or deeds conveying said lands to the Purchaser free and clear of all encumbrances except taxes for 1943, which will be apportioned as of April 15, 1943. At the same time the Purchaser will execute and deliver his purchase money mortgage and note or notes as aforesaid. If the purchaser, on examination of said abstracts, finds the record title as therein shown to be not merchantable, in whole or in part, he shall within the forty-five (45) days allowed for examination of said abstracts furnish to the Seller a written statement of any defects claimed to render the same unmerchantable, and the Seller shall have a reasonable time thereafter in which to correct or eliminate such defects failing which, the Purchaser may cause such defects to be corrected or eliminated, if possible, within a reasonable time thereafter, the actual expense of which, not to exceed $500.00, shall be paid by the Seller, or, failing the clearing of such defects, as aforesaid, at his option the Purchaser may accept conveyance subject to such defects, without diminution of the price by reason thereof, or, at his option, may rescind this agreement, and, upon return to him by the Seller of all sums paid by the Purchaser hereunder, shall return to the Seller all abstracts received by him hereunder and surrender possession of said lands and personal property to the Seller, whereupon all rights and liabilities of the parties hereunder shall cease.
'This agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.
This purchaser's and seller's agreement was considered by us in Lang v. Horne, 156 Fla. 605, 23 So.2d 848. Lang brought a suit in equity for a rescission of the aforesaid purchaser's agreement because of the failure of the seller to deliver to the purchaser abstracts of title to the real estate within the time set out in the contract of purchase. The lower court sustained a motion to dismiss Lang's bill of complaint and on appeal here the order was affirmed. Lang assigned and transferred the aforesaid contract of purchase to Charles A. Savege and Wallace E. Sturgis and shortly after the going down of our mandate, another suit in equity was filed under this purchase agreement against the Hornes and other's incidentally interested.
The bill of complaint alleged that Lang, pursuant to the contract, went into possession of the land after paying the additional sum of $5,000 on April 15, 1943, and immediately made permanent improvements thereon at a cost of $1,815.19. Pursuant to the contract of purchase he paid the 1943 taxes in the sum of $227.04. The plaintiffs tendered to the seller on December 22, 1945, the sum of $7,054.91, the balance due on the purchase agreement existing between the parties. A supplementary tender of the balance due was made on December 25, 1945. The two tenders of the balance due were in writing, addressed to Mr. and Mrs. Jack Horne and the Commercial Bank & Trust Company of Ocala, Florida. 'Duplicates of said letter were delivered to the bank and to Mr. Frank R. Green, who was present in his relation as attorney for Mr. and Mrs. Jack Horne.' Copies of the two letters are attached to the bill of complaint, signed by the plaintiffs, and identified as plaintiffs' Exhibits 'D' and 'E' and by appropriate allegations made a part of the bill of complaint.
The bill of complaint alleged that Jack Horne and wife, Celeste Horne, acting through their attorney, Frank R. Green, on January 4, 1946, repudiated the purchase price agreement, supra, and rejected the tender of payment set out in Exhibits 'D' and 'E', supra, of the balance due under the terms of the purchase agreement made by the plaintiffs below. The plaintiffs were then and there advised, it is alleged that the seller Horne had taken possession of the land and had not since taking possession made any offer whatsoever to refund to the plaintiffs any part of the purchase money or other sums of money expended by plaintiffs and their predecessor in interest under said agreement dated March 31, 1943. The acts and doings of the Hornes are contrary to the terms, conditions and provisions of the purchase agreement ensuing between them.
Paragraph 9 of the bill charges that the aforesaid acts of the Hornes were and remain in violation of the purchaser and seller agreement, supra, and constitute a breach thereof on the part of the defendants, and an abandonment of, and offer to rescind said contract or purchase, which abandonment is recognized by the plaintiffs, and the offer on the part of the defendants to rescind is accepted by the plaintiffs. Plaintiffs are entitled to have an accounting from the defendants and a refund of all sums of money paid by plaintiffs and their predecessor to the defendants under the agreement to purchase dated March 31, 1943, inclusive of all sums of money paid out and expended for taxes and permanent improvements placed upon the property when in the lawful possession thereof.
Plaintiffs offer in their bill of complaint to do equity, and to abide by and comply with any decree of the Court that may be entered in the premises and pray specifically (a) that the contract of purchase obtained by transfer and assignment by an appropriate order be rescinded and held as naught; (b) that an accounting be had under the direction of the court and they be permitted or allowed enumerated items referred to from 1 to 6 flowing from the signing of the contract and part performance thereunder; (c) that the amount found due be decreed due and payable on a day certain; (d) that the property described in the contract be decreed to be subject to a lien for the sum or sums found to be due the plaintiffs and upon failure to pay said sum due that the lands be sold at public outcry and the proceeds applied to the amount found to be due the plaintiffs; (e) that the court retain jurisdiction of the cause and parties to render such orders and decrees as may be necessary according to law and equity.
The defendants moved the Chancellor below to dismiss the bill of complaint on grounds (1) the bill is without equity; (2) the bill of complaint shows an abandonment on the part of Lang and a waiver thereof by the defendant is not shown; (3) there is no showing of any right in the plaintiffs to demand performance of the contract; (4) the bill of complaint shows an abandonment of the contract by plaintiff's assignor nearly two years prior to the filing of this suit; (5) the bill of complaint discloses a breach of contract and an abandonment thereof for more than a year prior to plaintiff's tender; (6) the plaintiffs are bound by our holding in Lang v. Horne, supra; (7) there is no equitable basis for rescission alleged; (8) the allegations of tender by plaintiffs are legally insufficient; (a) plaintiffs' assignor abandoned the contract; (b) plaintiffs' assignor was in default and the full amount of the tender is not alleged; (c) the tender as alleged is legally insufficient (d) plaintiffs' assignor breached and abandoned the contract and plaintiffs are bound thereby; (9) the bill of complaint fails to allege equitable grounds for rescission; (10) defendants' alleged breach of the contract is a conclusion of the pleader; (11) certain letters referred to in paragraph 9 of the bill of complaint are insufficiently set forth; (12) the defendants' reasons for rejecting plaintiffs' tender are not accurately alleged; (13) the bill of complaint contains no offer by plaintiffs to do equity; (14) plaintiffs' assignor willfully breached and abandoned the contract and...
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