Shouse v. Doane

• Decision Date: 10 March 1897
• Citation: 39 Fla. 95,21 So. 807
• Parties: SHOUSE v. DOANE.
• Court: Florida Supreme Court

21 So. 807

39 Fla. 95

SHOUSE v. DOANE.

Florida Supreme Court

March 10, 1897

Appeal from circuit court, Clay county; W. B. Young, Judge.

Bill by Robert M. Shouse and Marie E. Shouse against Daniel Doane. On the death of Marie E. Shouse, the suit was revived in the name of Robert M. Shouse in his own right, and as administrator of the estate of the deceased. From a judgment for defendant, complainant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. When the terms of a written contract are in any respect doubtful or uncertain, or if the contract contains no provisions on a given point, or if it fails to define with certainty the duties of the parties with respect to a particular matter or in a given emergency, and the parties to it have by their conduct placed a construction upon it which is reasonable such construction will be adopted by the court, upon the principle that it is the duty of the court to give effect to the intention of the parties where it is not wholly at variance with the correct legal interpretation of the terms of the contract.

2. Although time be made of the essence of a contract, yet if the party to whose benefit such provision inures, subsequent to the time when a forfeiture would occur under such provision, by deliberate acts recognizes the contract as still subsisting, such conduct will amount to a waiver of such forfeiture on his part.

3. Where time is made material by express stipulation in a contract, the failure of one of the parties to perform a condition within the particular time limited will not in every case defeat his right to specific performance if the condition be subsequently performed, without unreasonable delay, and no circumstances have intervened that would render it inequitable or unjust to give such relief, for the discretion which a court of equity has to grant or refuse specific performance may, and of necessity must, often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions.

4. Where the payment of the last installment of purchase money by the vendee and the conveyance of the title by the vendor are concurrent and dependent acts, the vendee, before he can maintain a bill for specific performance against the vendor must pay or tender the purchase money in full. The tender need not, however, be unconditional, for such tender must necessarily, from its nature, be conditional only and dependent on and to be performed only in case of the readiness of the other party to perform his part of the agreement of sale.

5. A contract to convey land by good and sufficient deed does not bind the party merely to execute a deed good in point of form, but it obliges him to make a title to the land, free from reasonable doubt, and to remove any existing incumbrance, or protect the vendee against it.

6. A contract to convey land by good and sufficient deed obliges the vendor to execute a deed so drafted and executed as to leave no reasonable doubt of its legal sufficiency to convey the land, and free from all such interlineations and erasures as are reasonably calculated to throw suspicion or cast doubt upon the paper as a valid, bona fide conveyance.

COUNSEL

R. W. & W. M. Davis, for appellant.

Cooper & Cooper, for appellee. This was a bill for specific performance, originally filed April 4, 1889, by appellant and his wife, Marie E. Shouse, against the appellee, in the circuit court of Clay county, and subsequently, after the death of the said Marie E., revived in the name of the present appellant, in his own right, and as administrator of her estate. The contract sought to be specifically enforced was in the following language:

'This agreement, made in duplicate, this, the twenty-seventh day of November, A. D. 1884, by and between Daniel Doane, of Brooklyn, in the county of Suffolk, state of Mass., and Marie E. Shouse, of Orange Park, in the county of Clay state of Florida,--Daniel Doane, of Brooklyn, county of Suffolk, state of Mass., of the first part, Marie E. Shouse, of Orange Park, in the county of Clay, state of Florida, party of the second part,--witnesseth: That whereas, the said party of the second part has agreed to purchase of the said party of the first part a certain parcel of land situated in the town of Orange Park, county of Clay, and state of Florida, and described as follows, to wit, 'Lot numbered 8, block 11, Sec. 1,' as shown on plan of lands entitled 'map of Florida Winter Home and Improvement Company's Lands,' and recorded in the county clerk's office, Clay county, state of Florida, in Book K, page 59, of public records in said Clay county, containing one-half acre, more or less, for the sum of four hundred and seventy-five dollars ($475), with interest from the date of this instrument at seven per cent. interest per annum, payable at the office of W. H. Crocker, at Orange Park, county of Clay, state of Florida, as follows: One-quarter of the purchase money, $118.75, on the delivery of this instrument, and the balance in three equal payments, of $118.75 each, with accrued interest. The party of the second part has given three promissory notes of even date herewith, which said notes form a part of this agreement, and has agreed to pay all taxes and assessments upon said land before the same becomes delinquent, and that time is of the essence of this agreement; and, if any of the said stipulations are not duly complied with, all right to the said land and improvements thereon and all moneys paid therefor shall be forfeited to the said party of the first part, and the said party of the second part shall thereafter hold the said land only as a tenant at sufferance to the said party of the first part, and that no right under this agreement shall be assignable without the written consent of the said parties of the first part: Now, therefore, in consideration of the above, the said party of the first part, for their heirs and assigns, agree to give the said party of the second part possession of the said land so long as the agreement above set forth is complied with; and, upon the payment of said promissory notes and other stipulations above set forth being complied with, to convey the said land, by good and sufficient land deed, to the said party of the second part. In witness whereof, the said parties of the first and second part hereunto set out hands and seals, in duplicate.

'Witness:

'H. A. Fernold. Daniel Doane. [Seal.]

'W. H. Crocker. Marie E. Shouse. [Seal.]

'W. H. Crocker. R. M. Shouse. [Seal.]

After the cause was revived, on June 20, 1890, the appellant filed his 'amended and supplemented bill,' as he terms it, by which was alleged the making of the agreement sought to be enforced, the ownership by defendant at that time of the premises therein described, the payment of the $118.75 in cash mentioned in the agreement, the giving of notes for the deferred payments, the payment of the two notes first falling due, the payment of all taxes on the land, the readiness and willingness of said Marie E. at all times during her lifetime, and of appellant, both before and since her death, to perform all the stipulations of the contract; that they did perform them; that the deceased, upon the making of the contract, took possession of the premises, and remained in possession until she died; that complainant was, at the time of filing the supplemental and amended bill, in possession thereof; that on November 27, 1889, said Marie E. applied to defendant, and offered to pay him the last promissory note and interest, and then and there tendered him the money, principal, and interest then due, and requested a good and sufficient deed, which defendant refused to execute, and continued to refuse until the date of filing the bill; that complainant was still willing to pay said money and otherwise to perform fully the terms of the agreement whenever the defendant should make and deliver a good and sufficient deed for the property; and praying that defendant be decreed to specifically perform said agreement, and execute a deed for said land, the complainant being willing and thereby offering to specifically perform said agreement and to pay defendant whatever might be due him.

The defendant filed his answer June 23, 1890, admitting the execution of the agreement, denying that, by its terms, he was to execute a warranty deed, or a deed in fee simple, but only a 'good and sufficient deed' upon payment of the promissory notes referred to in the agreement and the performance of the other stipulations therein, denying that the two first notes were paid promptly, and alleging that he collected them with great difficulty and trouble, being compelled to accept small fractional amounts at irregular times as he could get them, alleging that the notes were not fully paid until long after maturity, although defendant was constantly demanding and pressing payment; that he even had to take about $15 worth of paint out of a stock of goods of which R. M. Shouse was assignee, to complete the payment of the second note; that a number of the payments applied to the notes were collected by him for rent from the tenant on said land, and applied as credits on the notes, whereas, the stipulations of said agreement having been broken by said Marie E. and her husband, the possession of the land had reverted to defendant, and such rent was really due to him and not to said Marie E. and husband; that, in relation to the third note referred to in the bill, no legal tender was ever made to defendant of the amount thereof; that said Marie E. made no offer to pay same, but that R. M. Shouse, her husband, said something to defendant's agent some time in the summer of 18...