Stevens v. Gray, 1717
| Decision Date | 13 January 1969 |
| Docket Number | No. 1717,1717 |
| Parties | Monette E. STEVENS, Appellant, v. Fred E. GRAY, Trustee, Appellee. |
| Court | Florida District Court of Appeals |
Leon H. Handley, of Gurney, Gurney & Handley, Orlando, for appellant.
Ned N. Julian, Jr., of Stenstrom, Davis & McIntosh, Sanford, for appellee.
The appellant-defendant, Monette E. Stevens, appeals a summary final judgment entered in favor of the appellee-plaintiff, Fred E. Gray, Trustee, in an action for specific performance for the conveyance of property. We reverse.
On September 16, 1963, the plaintiff, Fred E. Gray, Trustee, as buyer, and the defendant, Monette E. Stevens, as seller, entered into a written agreement whereby the defendant agreed to sell and convey to the plaintiff by good and sufficient deed a single tract of land consisting of 123.418 acres for the purchase price of $36,000. The plaintiff deposited $1,000, which was placed in escrow in accordance with the agreement.
In November 1966, more than three years after the execution of the agreement in question, the plaintiff filed his complaint seeking specific performance of the above alluded to agreement. In paragraph 3 of the complaint, the plaintiff alleged:
'The property described in said Agreement contains 123.418 acres; that 61.342 acres contain borrow pits Still owned by the State Road Department of Florida; that the Defendant agreed to procure title to said 61.342 acres from the State Road Department and sell same together with other lands to the Plaintiff, and the Defendant has failed to procure said title; that the Plaintiff has corresponded with the Defendant on or about October 11, 1966, and stands ready, willing, and able to purchase said property * * *.' (Emphasis added.)
The defendant-buyer answered, admitting the said allegations contained in paragraph 3 of plaintiff's complaint except that she denied any knowledge as to whether plaintiff stood ready, willing and able to purchase the tract described in the contract.
Paragraph 5 of plaintiff's complaint asserts that plaintiff requested the conveyance of the said lands in toto or the portions thereof, the fee title to which is vested in the defendant, but that the defendant has refused to abide by the agreement and furnish unto the plaintiff evidence of title as required by the said agreement, or abide either the terms of the agreement.
The defendant in her answer to paragraph 5 of the plaintiff's complaint alleged that she has attempted to comply with the agreement, which is alleged in the complaint, but that the State Road Department has title to the borrow pits contained on said property and the defendant has made an attempt to secure the title to said borrow pits but has been unsuccessful in doing so, and the title of said pits remains with the State Road Department of the State of Florida, and she cannot complete the terms of the agreement.
Thereafter, the plaintiff moved for summary final judgment asserting that the plaintiff as purchaser and the defendant as seller entered an agreement for the sale and purchase of certain lands and that title to the land in question is in the defendant with the exception of title to certain borrow pits on the said property, which title remains vested in the State Road Department; that the defendant under the laws of the State of Florida is in a position to acquire title to said borrow pits; that the plaintiff has paid $1,000 deposit; that the defendant has refused to perform her obligations under the agreement; and that the plaintiff has stood and continues to stand ready, willing and able to pay the remaining purchase price and execute the necessary promissory note and purchase money mortgage as required by the agreement. Finally, plaintiff's motion for summary final judgment with attached exhibits and affidavits in support thereof asserts that there is no genuine issue as to any material fact, and that the plaintiff is entitled to a judgment as a matter of law.
The trial court entered summary final judgment for the...
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Haisfield v. Flemming-Haile, 01-1008
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