Schmidt v. Kibben

• Decision Date: 10 January 1931
• Citation: 132 So. 194,100 Fla. 1684
• Parties: SCHMIDT et ux. v. KIBBEN et al.
• Court: Florida Supreme Court

132 So. 194

100 Fla. 1684

SCHMIDT et ux. v. KIBBEN et al.

Florida Supreme Court

January 10, 1931

Commissioners' Decision.

Suit by Maude C. Kibben and husband against W. H. Schmidt and wife. A demurrer to complainants' bill was overruled, and defendants appeal.

Affirmed.

Syllabus by the Court.

SYLLABUS

Where under the allegations of a bill of complaint, an equity for substantial relief may be shown by appropriate and sufficient evidence, it is error to sustain a general demurrer to the bill.

Although a contract made by a married woman may not be specifically enforced against her by reason of the fact that such contract was not executed or acknowledged by her in accordance with the statutory requirements, such fact does not make the contract void, but, upon a sufficient showing in proper proceedings instituted for that purpose, the money paid to such married woman upon such contract may be required to be returned or decreed to be a lien upon her property.

Courts of equity may enforce the specific performance of contracts for the conveyance of real estate, owing to the nature and uses of such property, or may foreclose rights growing out of the contracts, when the application of principles of law to the facts and circumstances of particular cases warrants it.

Until the terms of the contract establishing the relation of vendor and vendee are complied with, the legal title to the property agreed to be conveyed remains in the vendor as his security or, as it is otherwise expressed, he has a lien upon the vendee's equitable estate as security for the payment of the purchase money according to the terms of the agreement. In effect, this lien consists of the vendor's right to enforce payment of the price by a suit in equity against the vendee's equitable estate in the lands instead of by means of an ordinary action at law to recover the debt.

A vendor's equitable remedy against his vendee for the enforcement of the payment for the property which he has contracted to convey is a suit in the nature of a strict foreclosure by which the vendee is decreed to pay the price within a limited time, and in default of such payment the vendee's equitable estate is foreclosed and sold to pay the purchase price.

In a case where a contract containing mutual covenants is not enforceable as against one of the parties by reason of some disability, yet such party performs all the obligations on his part to be performed, the objection of lack of mutuality does not lie.

The protection which the law throws around married women by making certain contracts unenforceable against them personally was intended to operate as a shield of defense and not as a sword of offense. Appeal from Circuit Court, Pinellas County John U. Bird, judge.

COUNSEL

J. C. Davant, of Clearwater, for appellants.

Kelly, Casler & Thompson, of Clearwater, for appellees.

OPINION

DAVIS C.

Complainants, appellees here, filed their bill wherein they alleged that the complainant, Maude C. Kibben, was on October 16, 1925, the owner of the property therein described, and that she made and delivered the contract, a copy of which is attached to the bill and made a part thereof, whereby Maude C. Kibben (not being joined by her husband) agreed to sell, and the defendants agreed to purchase, for a named consideration, certain real estate. The contract acknowledged receipt of an initial payment, and obligated the purchasers to pay $500 on January 1, 1926, and 'balance in one, two, three and four years from date' of instrument, and 'mortgage to be given when deed is delivered (January 1, 1926).' The bill shows further the receipt of the initial payment as well as the sum of $500, which was to have been paid on January 1, 1926; a tender of a warranty deed to said property duly executed by complainants together with abstract showing merchantable title to the property; and offer to perform all acts required to be done by complainant Maude C. Kibben; a failure and refusal of defendant to perform the agreement; and a present readiness and willingness and ability of complainants to perform the contract. It is alleged also that the defendants have had continuous possession of the premises from the date of the contract, the value of which to the time of the filing of the amended bill was alleged to be $3,250. The bill contains a prayer that the defendants be required to pay the amount ascertained to be due by the court; that such amount be decreed to be a lien upon the property; that the premises be sold to satisfy said lien; that a deficiency decree be entered, and also prays for general relief. A demurrer was interposed to the bill, and the same was overruled by the court. The defendants thereupon appealed the case to this court.

Where, under the allegations of the bill of complaint, an equity for substantial relief may be shown by appropriate and sufficient evidence, it is error to sustain a general demurrer to the bill. Edmons v. Gracy, 61 Fla. 593, 54 So. 899, 900; Wells v. Williams, 80 Fla. 498, 86 So. 336; Battey v. Battey, 92 Fla. 512, 109 So. 584; Hall v. Forman, 94 Fla. 682, 114 So. 560; Boone v. Gay, 84 Fla. 589, 94 So. 501; Leavine v. Belt Automobile Indemnity Ass'n, 88 Fla. 553, 102 So. 768; Walker v. Close, 98 Fla. 1103, 125 So. 521, 126 So. 289.

Appellants in their brief contend that there is no mutuality in the contract sought to be enforced, because the vendor at the time of making the contract was a married woman, and her husband did not join her in its execution. It appears, however, that both husband and wife joined in the execution of the deed which was tendered to the defendants, and that the complainants offered to perform every act on their part that was required by the contract. The demurrer admits that the defendants not only refused to comply with the terms of the agreement to be performed by them, but that they retained possession of the property. There is no question here of the vendor failing or refusing to live up to the contract. Under these circumstances, is it to be said that, merely because the vendor was a married woman, she can have no relief in equity? She could not refuse or fail to comply with the provisions of the contract and at the same time retain the money paid in pursuance of its terms, for a court of equity would decree that she 'return the money paid to her, * * * and, failing therein, that it become a lien upon her separate property.' Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876, Vance v. Jacksonville Realty & Mortgage Co., 69 Fla. 33, 67 So. 636. But a court of equity would not require a restoration of the money paid by appellants upon the theory that Mrs. Kibben was a married woman and that the written contract was unenforceable. Edgar v. Bacon, 97 Fla. 679, 122 So. 107. Quoting from Shields v. Ensign, 68 Fla. 522, 67 So. 140, 141, we find that:

'The statute does not make the written ageements of a married woman, otherwise executed, absolutely void and nonchargeable upon her estate, but merely that they shall not be specifically enforced, a much higher equity than the mere charging for a breach of contract.

'* * * If a feme sole had executed the option, she would not be held liable for the thousand dollars, unless she breached the contract, and we can see no reason why coverture should render her liable. How can it be that a court of equity will reward a breach of an agreement, as a benefit to the separate estate, when its performance would admittedly, largely increase the value of that estate?'

See, also, Vance v. Jacksonville Realty & Mortgage Co. supra; Wheeler v. Sullivan, supra; Equitable Bldg. & Loan Association v. King, 48 Fla. 252, 37 So. 181.

The suggestion has been made in the brief of appellees that the bill seeks a foreclosure and not a specific performance of the contract. In Edmons v. Gracy, supra, the complainant filed a bill for the foreclosure of a contract, and the court, although not saying so in as many words, virtually held that the bill was for enforcement of the contract. The same relief may be granted whether we call the bill in the instant case a bill to foreclose or a bill to enforce the contract. In...