Thomas N. Carlton Estate v. Keller

• Decision Date: 20 April 1951
• Citation: 52 So.2d 131
• Parties: THOMAS N. CARLTON ESTATE, Inc. v. KELLER et al.
• Court: Florida Supreme Court

Page 131

52 So.2d 131

THOMAS N. CARLTON ESTATE, Inc. v. KELLER et al.

Supreme Court of Florida, Special Division A.

April 20, 1951.

W. W. Whitehurst, Wauchula, for appellant.

Rosin & Paderewski and M. A. Rosin, all of Arcadia, for appellees.

WEHLE, Associate Justice.

The plaintiff's grantors, Taylor and wife, the owners of certain lands in Hardee County, on March 25, 1946, contracted to sell said lands to Keller and wife for $11,000.00, $4,000.00 down, and the balance $1,000.00 a year payable on March 25th of each of the succeeding years for three years and the remaining $4,000.00 on March 25th of the 4th year, with interest on the unpaid balance from date of sale at 4% per annum. The Kellers were put into possession of the property and a deed from the Taylors to the Kellers was placed in escrow with the Wauchula State Bank, under an escrow agreement which provided that upon payment of the sums above set forth, the deed was to be delivered to the Kellers and 'if payments are not made as specified or within 60 days thereafter, then the above deed to be returned to J. N. Taylor, and said Frank W. Keller to deliver possession and said Taylor to keep all moneys paid as rent and in liquidation of all damages suffered from said Keller not fulfilling his obligations. Taxes to be kept paid by said Keller. In case payments are not made and deed is returned to Taylor, then said Taylor agrees not to look to said Keller for any further payments except the land.'

The annual interest payments due in 1947, 1948, and 1949 were paid to the excrow agent and received by Taylor. None of the $1,000.00 payments on principal due in said years was made. Keller died in 1947 and his wife (defendant herein) and sons remained in possession of the lands, operation a truck farm and citrus grove thereon.

The escrowed deed remained with the Bank until January 9, 1950, when Taylor secured the deed from the Bank and on the same day conveyed the land to the plaintiff and notified Mrs. Keller to vacate. She did not comply but continued in possession and proceeded to sell the current citrus crop to the other defendants herein.

Bill of Complaint was filed February 3, 1950, setting forth the above facts and asking for an injunction against the sale and removal of the fruit, a receiver of the property, and a mandatory injunction requiring Mrs. Keller to vacate the premises.

Defendant, Mrs. Keller, answered claiming that the making of the annual payments on principal had been orally waived from time to time by Taylor and that no notice had been given to her of Taylor's intention to claim a forfeiture of her rights under the contract, and that she stood ready to make whatever payments might be due; and asked, as a counterclaim, for the Court to declare the rights, status, et cetera; of the parties and to require vesting of the title in her upon her completing such payments of principal and interest as the Court might find were past due and such further payments as might become due in the future.

It was admitted that plaintiff stood in the legal shoes of Taylor and that plaintiff's cause of action was subject to any defenses that might have been asserted against Taylor had he not conveyed to the plaintiff.

The Chancellor personally heard the testimony and entered a decree for the defendants finding that Mrs. Keller was the vendee in possession of the property, was entitled to notice with a fair opportunity to make up the defaulted payments, and, not having been given such notice and opportunity, was entitled to prevail on her counterclaim. The decree further provided that she should have 21 days to place herself in good standing under the contract by paying the defaulted principal payments and current...