Smith v. Macbeth

• Decision Date: 18 May 1935
• Citation: 161 So. 721,119 Fla. 796
• Parties: SMITH v. MACBETH.
• Court: Florida Supreme Court

161 So. 721

119 Fla. 796

SMITH v. MACBETH.

Florida Supreme Court, Division B.

May 18, 1935

Rehearing Denied June 14, 1935.

Suit by E. A. Macbeth against M. A. Smith, substituted for John W Sissons, as liquidator of the Bank of Titusville. Decree for plaintiff, and defendant appeals.

Affirmed. Appeal from Circuit Court, Brevard County Frank A. Smith, judge.

COUNSEL

Crofton & Wilson, of Titusville, for appellant.

O. S Thacker, of Kissimmee, for appellee.

OPINION

TERRELL Justice.

May 30, 1925, J. L. Easterlin and his wife, B. J. Easterlin, contracted to sell Wm. P. Pastorius certain lands in Brevard county, Fla. Pastorius put up a 'binder' of $250, which, with the deed of conveyance by the Easterlins to him, was placed in the Bank of Titusville & Trust Company with the following letter of instruction, signed by all three parties:

'We hand you herewith deed from J. L. Easterlin and wife, B. J. Easterlin, and the sum of Two Hundred and Fifty ($250.00) Dollars cash, which deed and money you will please hold in escrow upon the following terms and conditions:

'The said J. L. Easterlin and wife will, as soon as possible, obtain an abstract to the property described in the deed, to-wit: Government Lot 2 of section 5, Township 25 South of Range 38 east, containing 40 acres, more or less, and deliver the same to you for examination by counsel for William P. Pastorius, who shall within fifteen days after such delivery return the same with the written opinion of his counsel either approving or disapproving the title shown by the Abstract. In case such written opinion does not approve as a merchantable title the title of said J. L. Easterlin and wife, then and in that event the $250.00 cash shall be returned to William P. Pastorius and the deed returned to J. L. Easterlin. In case such opinion approves the title, you may deliver the deed herein to Mr. William P. Pastorius upon the payment of one fourth of the purchase price of said property and the delivery of a first mortgage on said property properly executed and securing the balance of the purchase price, which is to be evidenced by promissory notes maturing one, two and three years after date of deed and drawing interest at the rate of 8 per cent. per annum, payable semi-annually.

'It is understood and agreed that the total purchase price is approximately Eighty-four Thousand ($84,000.00) Dollars or Thirty-two ($32.00) Dollars a front foot of ocean frontage, the exact frontage to be determined by survey of the land by the purchaser, William P. Pastorius, or the above figures accepted and considered correct.

'In case the opinion of counsel shall find that the title is merchantable as shown by said abstract and the said William P. Pastorius shall decline to consummate the purchase as herein provided then and in that event you are authorized to deliver both the deed and the cash sum of $250.00 to the said J. L. Easterlin, or in case said abstract is not returned within the said fifteen days the transaction shall be considered terminated and you are instructed to deliver both the money and deed to the said J. L. Easterlin.'

Pastorius later contracted to sell the said lands to appellee, E. A. Macbeth, and on November 13, 1925, placed with the Bank of Titusville & Trust Company the sum of $21,000, paid him by Macbeth, with the following letter of instruction:

'I hand you herewith the sum of $21,000.00 to be held by you in escrow and paid over by you under the following terms and conditions, viz;

'There is a deed that you now hold in escrow to government Lot 2, of Section 5, Township 23, South of Range 38 East, containing 40 acres more or less, executed by J. L. Easterlin and B. J. Easterlin, his wife, to Wm. L. Pastorius. This deed was executed on the 13th day of May, 1925, and placed with you in escrow with a contract of the same date directing its disposition.

'I do not intend by this letter or by any instructions hereunder to abrogate in any manner, form, or fashion, the agreement above referred to or the disposition of the deed under said agreement. It developed after placing the aforesaid deed with escrow that one Allen filed his lis pendens against the property conveyed in the deed and instituted suit for specific performance. This necessitated delay in carrying out the final consummation of the deal as outlined in the said escrow agreement.

'Hence, I am placing with you the sum of $21,000.00 as an evidence of my good faith and willingness to perform all functions by me to be performed as outlined in the escrow agreement.

'You will hold this $21,000.00 and turn it over to J. L. Easterlin and B. J. Easterlin, his wife, when the lis pendens with all attendant appeals will have been adjudicated in favor of J. L. Easterlin and his wife, B. J. Easterlin, and when the records of the County of Brevard will have been purged of any and all liens against the said property conveyed in the deed held by you in escrow.

'However, in the event of an appeal by Allen or his counsel being taken to the Supreme Court of Florida from any finding in the case of Allen vs. Easterlin, then in that event you are empowered to deliver to J. L. Easterlin and B. J. Easterlin, his wife, the sum of $5,000.00 upon their producing to you a receipt for same, acknowledging the same to be a part of the cash payment on the purchase price of the said property; said receipt to acknowledge this escrow letter and be signed by J. L. Easterlin and B. J. Easterlin, his wife, before a Notary Public.

'You are hereby informed that the aforesaid property has been sold to E. A. Macbeth and that the said...