Taylor v. Mathews

• Decision Date: 07 May 1907
• Parties: TAYLOR v. MATHEWS et ux.
• Court: Florida Supreme Court

44 So. 146

53 Fla. 776

TAYLOR v. MATHEWS et ux.

Florida Supreme Court, Division B.

May 7, 1907

Appeal from Circuit Court, Polk County; Joseph B. Wall, Judge.

Action by Thomas G. Taylor against George H. B. Mathews and Martha J. Mathews. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Where a demurrer to a bill offered by two defendants is joint and several, it may be good as to one and bad as to the other but, where the demurrer is joint, it must be good as to each of them, or it will, as a general rule, be bad as to each.

For a misjoinder of parties, those only can demur who are improperly joined.

The joinder of an improper party defendant in a bill is not of itself a ground for dismissing the bill, as it does not necessarily affect the jurisdiction of the court, or prevent it from making a proper decree in the case.

A married woman in this state is not a proper party defendant to a bill for the specific performance of a parol contract for the conveyance of real estate by the husband, in which the wife has only a contingent dower or other interest; there being no statutory authority for such a proceeding.

The essentials of a good tender of money, where a purchaser seeks the enforcement of a contract for the conveyance of real estate, are set forth in the case of Shouse v Doane, 39 Fla. 95, 21 So. 807.

It is not essential that a mortgage given by a purchaser of real estate to secure the deferred payments of purchase money should be executed by the purchaser's wife.

Where a bill is filed by the purchaser to enforce a contract for the purchase of real estate, it is not a good ground of objection that the contract is in the alternative, when it provides that the vendor may elect between two or more certain feasible, and proper alternatives as to the security he would reserve or take for the deferred payments.

Where a bill to enforce a specific performance of a verbal contract to convey real estate alleges that the purchaser has been given possession of the real estate under the contract, and that he has expended labor and money upon its improvement, it is not essential to his right to specific performance that he should have paid the whole of the purchase money.

Where in a contract for the purchase of real estate, it is provided in the alternative that the vendor at a certain future time might elect whether he would give a deed to the property and take back a mortgage therein for the unpaid purchase money, or give a bond for title to the purchaser, and where the vendor refused to do either, quaere, whether the purchaser himself might not then elect which of the alternatives should be adopted, and enforce his election.

COUNSEL

Wilson & Wilson, for appellant.

J. W. Brady, for appellees.

his bill in the circuit court of Polk county against George H. B. Mathews and Martha J. Mathews, his wife appellees, wherein, after the introductory part, he alleged:

'That for many years last past your orator, with his family, consisting of his wife and children, has been a resident of Osceola county, Florida, and so remained until the happening of the events hereinafter set forth. That on the 28th day of September, 1905, the defendant George H. B. Mathews was then seised and possessed in fee simple of the following described lands and tenements situate, lying and being in the county of Polk and state of Florida, to wit: The south half of southeast quarter of section twenty-eight (28), and the northeast quarter of northeast quarter of section thirty-three (33), in township twenty-nine (29) south, range twenty-six (26) east--and, being so seised and possessed, on that day he, the said George H. B. Mathews, and his said wife, Martha J. Mathews, made and entered into a verbal agreement with your orator for the sale of same, in which said agreement both of said defendants united and concurred, and by the terms of which the said George H. B. Mathews and his said wife, Martha J. Mathews, agreed for themselves, their heirs, executors, and administrators, for and in consideration of the sum of eighteen hundred and twenty-five dollars ($1,825), to be paid as hereinafter mentioned, well and truly to convey to your orator by good and sufficient warranty deed in fee simple the tracts or parcels of land above described. And in consideration thereof your orator promised and agreed to and with the said defendants to pay to the said George H. B. Mathews, his heirs, executors, administrators, or assigns, the said sum of eighteen hundred and twenty-five dollars in manner following, to wit: Two hundred and fifty dollars ($250) on October 28, 1905; three hundred and seventy-five ($375) dollars on January 1, 1906; six hundred dollars ($600) on January 1, 1907; and six hundred dollars ($600) on January 1, 1908. The last two of said payments to draw interest from January 1, 1906, at the rate of 10 per cent. per annum; it by the terms of said agreement being left optional with the said defendants as to whether or not they would, upon the payment of said sum of three hundred and seventy-five dollars on January 1, 1906, and the execution and delivery of all promissory notes of your orator for the said deferred payments of six hundred dollars each, execute and deliver to your orator a bond for title to said lands conditioned for the execution and delivery of a good and sufficient deed of conveyance of and to said lands to your orator upon the payment of the said promissory notes, with interest to accrue thereon, or whether they, the said defendants, would upon the payment of said sums of two hundred and fifty dollars on September 28, 1905, and three hundred and seventy-five dollars on January 1, 1906, execute and deliver to your orator a deed of conveyance to said lands, and take and accept from your orator a mortgage deed to and upon the same for the purpose of securing the payment of the said two promissory notes of six hundred dollars each, to become due and payable on the 1st days of January, 1907 and 1908, respectively, with interest to accrue thereon at the said rate of 10 per cent. per annum, both of which said notes were to be given for the balance of the purchase price of said lands and tenements so as aforesaid due and owing from your orator to the said George H. B. Mathews.

'Your orator further represents that, relying upon the good faith of the said defendants to fully carry out and perform their said contract and agreement, he at once procured a tenant for his home and farm in Osceola county, Florida, upon which he was then residing, and leased the same to such tenant for the ensuing year 1906, and delivered to such tenant the full and complete possession thereof for the term aforesaid, and proceeded to employ help and labor to assist your orator in the farming, cultivating, and improving of said lands and tenements so as aforesaid contracted of and from the said defendants, and on the 22d day of October, A. D. 1905, your orator applied for and was given full and complete possession of all of said lands and tenements by the said defendants under and by virtue of said contract of purchase, and that your orator has since thereafter continuously held and now holds actual, exclusive, and absolute possession of all of said lands and tenements, including the dwellings thereon, in which your orator has continuously dwelled and resided since October 22, 1905.

'Your orator further shows that, immediately upon his being let and placed into the possession of said lands and tenements by said defendants, he employed and caused to be removed to said lands help and labor for the purpose of cultivating and improving the same, and that such help and assistance has actually removed thereto under and by virtue of such contract of employment, and is now located thereon; that the fields and clearing on said lands, not having been cultivated for many years, had grown up with divers sorts of wild growth, and that your orator with the assistance of such help and at a great expense, to wit, the sum of two hundred dollars ($200), or some such sum, has since your orator has been so in possession thereof shrubbed, grubbed, and cleared away such growth from about thirty (30) acres thereof preparatory to the planting of spring crops thereon, and has actually plowed and prepared for such planting twenty-three acres thereof, and that your orator has made and is making every preparation to improve the same and to make it his future home for himself and his family; that soon after his removal to and upon said premises with his family and household goods, and after having been given and let into possession thereof by the defendants as aforesaid, to wit, on the 28th day of October, A. D. 1905, your orator in pursuance and compliance with the said contract of purchase actually paid to the defendants, and the defendants received of your orator, the said sum of two hundred and fifty dollars on account of said contract, for which the said defendants gave their written receipt, stating therein that the same was on account of said contract of sale and purchase.'

The bill further, in substance, alleged the appellant, in pursuance of the agreement on the 1st day of January, 1906 tendered to George H. B. Mathews the sum of $375 cash due under said agreement, and also two promissory notes, of $600 each, signed by appellant, dated 1st of January, 1906, one due and payable 1st of January, 1907, the other on the 1st of January, 1908, both drawing interest from January 1, 1906, at the rate of 10 per cent. per annum, and at the same time a bond for title to be executed and delivered to appellant, conditioned for the execution and delivery of a good and sufficient deed of conveyance of the premises upon payment of...