Taylor v. Day
| Decision Date | 23 September 1931 |
| Citation | 102 Fla. 1006,136 So. 701 |
| Parties | TAYLOR v. DAY. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Bill of review by Eugene Taylor against Frank P. Day. From an order sustaining a demurrer to the bill, complainant appeals.
Reversed.
Syllabus by the Court.
A bill of review may be properly brought for material error apparent of record any time within the six months' period allowed for entry of appeals or writs of error.
Under our statutes (section 5752, Compiled General Laws, 1927), the circuit courts of this state may upon proper showing vacate and set aside a foreclosure decree and dismiss the cause, any time before sale.
A vendor of real property by implication under a contract of sale, whether parol or written, obligates himself to convey good title free of incumbrances of record, in the absence of agreement otherwise.
A purchaser of real estate under an executory contract cannot be compelled to complete his purchase and accept title to property which is subject to a judgment incumbrance which vendor cannot or will not remove and which the purchaser cannot himself remove by application of the purchase money.
In every valid contract for sale of lands, in whatever language couched, there is, in the absence of any agreement to the contrary, an implied obligation to convey a good title free from reasonable doubt.
While a bill of review cannot be predicated upon mere formal irregularities nor matters resting in the discretion of the court, a former decree of foreclosure which requires the vendor complainant merely to deliver 'a deed,' without any warranty, to the property upon which there is a judgment of record in favor of a third party, may be proper subject for bill of review.
Courts may look back of a decree into the whole record of the proceedings, exclusive of the evidence, in order to ascertain if there be error in the decree itself.
A purchaser of real estate may be left to his remedy to apply purchase money to a judgment of record against the property but if the vendor cannot or will not remove the incumbrance and the vendee would be subject to added expense and delay of a suit at law to remove it, relief should be granted by bill of review to correct the decree of foreclosure of vendor's lien in which no such provision was made.
Where an owner enters into a parol agreement to sell real estate in which his wife has dower, he may be required to convey his interest free of judgments of record upon vendee paying the required portion of the purchase price. Appeal from Circuit Court, Hillsborough County; F. M. robles, judge.
Paul Pinkerton and E. B. Drumright, both of Tampa, for appellant.
Edwin R. Dickenson, of Tampa, for appellee.
This cause is here upon appeal from an order of the circuit court of Hillsborough county sustaining a demurrer to a bill of review filed by Eugene Taylor attacking the validity of a final decree, rendered in favor of appellee Frank P. Day in a former case of Day v. Taylor et al., which decree was entered pursuant to the foreclosure of a vendor's lien held by Day upon certain real property under a parol purchase contract entered into by Day as vendor and Taylor as purchaser.
The merits of the original case up to the time of rendering the decree sought to be reviewed are not questioned in the bill of review. It is contended that the former decree itself should be amended so as to fix the requirements of the deed of conveyance to be executed by Day to Taylor in order that the latter may be protected from a certain judgment which was of record against the property prior to the rendition of the said decree.
The bill of review alleges in substance that on September 3, 1929, a final decree was entered in favor of Frank P. Day in the foreclosure of his vendor's lien and therein adjudged that the defendant Eugene Taylor was entitled to a set-off and counterclaim of $1,100 as a credit due on the $1,800 purchase price of the lot from Day, and that the defendant was due complainant the balance of $700 together with costs to be paid in three days and in default that the premises should be sold to the highest bidder to pay said judgment; that the property was on October 7, 1929, sold at public outcry and bid in by complainant Day for $725 and the sale was confirmed by decree of the court which was filed October 10, 1929.
The bill of review in substance further alleges that after the rendition of the final decree of foreclosure, the defendant Taylor tendered to said Day the sum of $700 and demanded of and from said Day 'a conveyance by deed covering said premises with covenants of title free from incumbrances,' but that said Day 'refused to convey the same'; that at the time of said tender, also at the time of the entry of final decree and sale, there was of record in said county a judgment against the said Day which constituted a lien and charge against said premises in favor of Sullivan Remilling Company, in the sum of $513.66, which judgment remained unsatisfied and said Day refused to satisfy and remove; that on September 30, 1929, before sale, the defendant presented a petition for injunction attempting to enjoin the sale of said property under said decree apparently for the purpose of getting same modified. It is alleged that the final decree was erroneous, in that it failed to require complainant Day 'to convey a merchantable title, free of incumbrances to the said premises,' upon the payment of the $700 and costs.
The bill of review prays that final decree be so amended as to require the delivery of a deed executed jointly by Day and wife conveying a good title to said property free and clear of said incumbrance to Taylor upon the payment of the $700 and costs by the latter.
A demurrer to the bill of review which was sustained by the trial court raises several questions, usually directed at a bill of this nature, among them that the complainant is guilty of laches; that all matters relied upon for review have already been fully adjudicated between the parties; that complainant has a plain, complete, and adequate remedy at law; that the bill fails to set up new matter arising since the entry of the said decree sought to be reviewed; that the said bill fails to allege any error of law appearing in the body of the decree sought to be reviewed.
Upon the question of laches, it is shown that the final decree complained of was rendered on September 3, 1929, and that defendant's application to stay proceedings and enjoin the sale was denied September 30, 1929; that the bill of review was filed by permission of the court February 10 1930, which leaves intervening five months and seven days between the date of filing the decree and that of filing the bill of review. This places the filing of the bill of review within the period of six months from the entry of the decree which is allowed for taking an appeal. This has been construed to be a reasonable time permitted in this state for presenting a bill of review for errors apparent of record.
In the case of Zewadski v. Barksdale, 86 Fla. 552, 98 So 590, 591, this...
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MAJOR REALTY CORPORATION & SUBSIDIARIES v. Commissioner
...state this, it is clear that a purchaser is entitled to marketable title even if not stated in the contract. Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931). The inability of Major to deliver a marketable title on the closing date would have released the purchaser from its obligations unde......
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Klinger v. Milton Holding Co.
...under circumstances that demonstrate it to be indispensable to the merits and justice of the cause. See 10 R.C.L. 575.' See Taylor v. Day, 102 Fla. 1006, 136 So. 701; ex rel. Reynolds v. White and Florida Central & P. Ry., 40 Fla. 297, text 310, 24 So. 160; Mattair v. Card, 19 Fla. 455. Ser......
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Sterling Factors v. U.S. Bank Nat. Ass'n
...cited section 702.07 while recognizing the circuit court's ability to set aside a foreclosure judgment after sale. See Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931); see also Maule Indus., Inc. v. Seminole Rock & Sand Co., 91 So.2d 307 (Fla.1956). The Florida Supreme Court has thus concl......
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Toler v. Bank of America, Nat'l Ass'n
...Indus. v. Seminole Rock & Sand Co., 91 So.2d 307 (Fla.1956); Grace v. Hendricks, 103 Fla. 1158, 140 So. 790 (1932); Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931); Fasel v. Cox, 99 Fla. 968, 128 So. 33 (1930). 2. As to the timeliness issue, section 702.07 is irrelevant under the facts of ......