Tanner v. Overstreet Inv. Co.
| Citation | 154 So. 204,114 Fla. 474 |
| Parties | TANNER et al. v. OVERSTREET INV. CO. |
| Decision Date | 04 April 1934 |
| Court | United States State Supreme Court of Florida |
Petition for Rehearing Withdrawn April 23, 1934.
Suit by the Overstreet Investment Company, a, Florida corporation against Mary Ethel Tanner and another. From an adverse judgment, defendants appeal.
Reversed. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.
G Wayne Gray, of Orlando, for appellants.
Massey, Warlow, Carpenter & Fishback, of Orlando for appellee.
By agreement dated September 17, 1925, appellants agreed to sell and appellee agreed to purchase certain lands in Orlando Fla., more specifically therein described, the said lands being the separate property of appellant Mary Ethel Tanner. The appellee paid appellant $1,000 in cash when the agreement to sell was executed, and the balance of $20,500 was agreed to be paid in annual installments at 8 per cent. interest. The agreement provided that the vendors deliver abstract showing good and marketable title within thirty days. It was also provided that if said abstract showed title to be unmarketable and the infirmities therein could not be cured by amicable agreement of the parties thereto, then the vendor should have the right to return the cash payment and the agreement be null and void.
The abstract showed defects in the title, which were not promptly cured. In December, 1925, the vendors instituted a suit in equity to quiet the title, but in March, 1926, the vendee notified the vendor that it would wait no longer and demanded return of the cash payment. This demand was refused, and in July, 1926, the vendee filed its bill of complaint in the instant suit, praying that an accounting be ordered to ascertain the amount of principal and interest, including a reasonable attorney's fee that was due the vendee, that the agreement to sell be decreed to be null and void, and that the lands described in the said agreement be decreed to be subjected and sold to satisfy the amount decreed to be due the vendee, including costs and expenses. A demurrer to the bill was overruled, answer was filed, and a motion to strike the second, third, and seventh paragraphs thereof was granted. This appeal brings both decrees here for review.
We are first confronted with the question of whether or not the agreement to sell her separate property, joined in by her husband but not acknowledged with the formality of a deed, is such an agreement or contract as was contemplated by section 2 of article 11 of the Constitution, in that the said property described therein may now be charged in equity and sold as prayed for in the bill of complaint.
Section 2 of article 11 is as follows:
'A married woman's seqarate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof; or for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and consent.'
In fine, section 2 provides that a married woman's separate property may be charged in equity and sold for the following...
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