Walker v. Close

• Decision Date: 28 December 1929
• Citation: 98 Fla. 1103,125 So. 521
• Parties: WALKER v. CLOSE. [*]
• Court: Florida Supreme Court

125 So. 521

98 Fla. 1103

WALKER v. CLOSE. ^[*]

Florida Supreme Court

December 28, 1929

Commissioners' Decision.

Action by T. L. Walker against Harold E. Close. From an order sustaining defendant's demurrer to complainant's bill, complainant appeals.

Reversed.

(Syllabus by the Court.)

Appeal from Circuit Court, Hillsborough County; L L. Parks, judge.

COUNSEL

Caraballo Graham & Cosio, of Tampa, for appellant.

Shackleford Ivy, Farrior & Shannon, of Tampa, for appellee.

OPINION

ANDREWS C.

The appellant, complainant in the lower court, brought action against appellee, defendant in the lower court, to cancel and rescind a contract for purchase of real property, to recover the purchase money paid, to cancel certain notes outstanding, and for a lien against said property for repayment of the purchase price. The lower court sustained a general demurrer to the amended bill of complaint.

The amended bill of complaint in substance alleges that on or about June 15, 1925, complainant entered into a contract to purchase from defendant lot 10, block E. Riverbend subdivision, a subdivision then being developed by defendant, located in Hillsborough county, for the sum of $2,750, of which amount $550 was paid in cash, balance being payable quarterly in sums of $275 each, the last payment falling due June 15, 1927; that the defendant agreed, among other things, upon full payment of the purchase price, (1) to deliver an abstract and convey the land by warranty deed, free, clear, and discharged of all incumbrances; (2) to accomplish, without expense to complainant, (a) the installation on the streets adjoining said lands electric lights, water, and gas; (b) the paving of street or streets and the laying of sidewalks and curbing on either side thereof; (c) the beautification of said streets and parkways with trees and ornamental shrubbery in keeping with its development of said land.

The complainant alleges that he had made all payments due on said lands down to and including the payment of December 15, 1926, and about April 1, 1927 (a few days before the next to the last installment fell due), offered to pay the entire balance due, and demanded an abstract, which was furnished; that certain defects appeared in the title, pointed out in the bill, notice of which was given on April 7, 1927, with a demand to correct same; a similar request was made April 14, 1927; that on or about October 17, 1927, said defects not having been cleared up, and the improvements not having been installed, complainant tendered the balance of the purchase money and demanded the defects be cleared and improvements installed within 30 days from date thereof, or that defendant repay with legal interest the money paid on said contract in the amount of $2,200. The bill alleges that the defendant failed to perform said contract or repay said money.

The only assignment of error presented to this court for review is that the trial court erred in sustaining the demurrer of defendant to complainant's amended bill of complaint.

A demurrer to a bill in chancery admits for the purpose of the demurrer all allegations of facts well pleaded. Rawls v. City of Miami, 82 Fla. 65, 89 So. 351. Where under the allegations of a bill of complaint, a sufficient predicate is afforded for substantial relief, if sustained by evidence, a demurrer to the whole bill should be overruled. Boone v. Gay, 84 Fla. 589, 94 So. 501.

The demurrer being general and directed to the whole of the bill, the immediate question before us for consideration is that if there is any ground for equitable relief stated in the bill, a general demurrer to the bill should have been overruled. Leavine v. Belt Automobile Indemnity Association, 88 Fla. 553, 102 So. 768; Mitchell v. Mason, 65 Fla. 208, 61 So. 579.

There are, among others, two main grounds assigned and argued by appellant as reasons why he contends that the order of the lower court sustaining the demurrer should be reversed, namely: (a) That defendant could not, without material corrections, furnish a title 'free, clear, and discharged of incumbrances,' and that due notice of such defects had been given several months prior to the date the last payment was due on June 15, 1927; (b) that the improvements agreed by article V of the contract of purchase would be installed 'without expense to purchaser' had not been complied with; that a tender to defendant was made of the amount due with demand that defects in the title be cleared and improvements installed several months before the bill in this case was filed on January 24, 1928.

On the other hand, defendant, appellee here, maintains that complainant's objection to the title was without merit (1) as to the failure of the joinder of the wives of certain syndicate members in the trust deed to Harold E. Close; (2) that complainant was guilty of laches in declaring a rescission and bringing suit, and that the time stated by complainant for performance of the contract was under the circumstances unreasonable; (3) that, at the time demand was made, complainant was in default on account of failure to pay installments of the paving tax; (4) that covenants for improvements were independent and not dependent; (5) that complainant's demand for installation of improvements and correction of title as to mortgage incumbrance and as to inchoate rights of certain wives of beneficiaries were united in complainant's demand.

The first question we shall consider is: Was the title 'free, clear, and discharged of incumbrances'?

The amended bill of complaint alleges: (1) An unsatisfied mortgage of $71,250, as an outstanding first mortgage lien on the subdivision of about 40 acres; a partial release therefrom was requested as to the said lot 10. (2) An outstanding paving certificate against the lot, dated August 1, 1926, in the sum of $1,381.39; that the installation of electric lights, water, and gas, sidewalks and curbing, and beautification of parkways, had not been accomplished. (3) That the title was objectionable because of an inchoate right of dower in the wives of the various members of the syndicate for whom defendant was acting as trustee.

'In every valid contract for the sale of lands, whatever may be the language in which it is couched, there is an implied undertaking to convey a good title, unless such an obligation is expressly excluded by the terms of the agreement. * * *

'When a vendor of real property expressly or by implication agrees to convey a good title or marketable title, that undertaking is discharged only by the conveyance of a title unincumbered and free from reasonable doubt as to any question of law or fact necessary to sustain its validity.' Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876, 878; Holland v. Holmes, 14 Fla. 390.

In the case before us, the vendor agreed to convey the lot by warranty deed 'free, clear, and discharged of incumbrance.' The third question raised will be disposed of first.

We have examined the bill, with the exhibits referred to in the same, including the 'certificate of trust,' with the attached 'syndicate plan,' also sections 5665 to 5668, inclusive, Compiled General Laws of Florida, generally referred to as the 'statute of uses,' and we are of the opinion that title to lands in the subdivision in question vests in defendant Harold E. Close as trustee, with power to sell and convey legal title. The 'certificate of trust' shows that Close was to hold the land 'in trust for the subscribers * * * in accordance with syndicate plan hereto attached,' and that he would 'hold said title and any and all proceeds from the sale of any part thereof in trust for the subscribers to said syndicate and faithfully account to them therefor.'

The 'affidavit' of B. L. Hamner, attached to the bill, purports to recite the purpose and effect of certain 'quitclaim' deeds executed to Harold E. Close by the parties named as cestui que trustent. The quitclaim deeds have not been evidenced to us, but, assuming that they were executed in the manner stated, it would add nothing to nor take from the power already held by Close under the certificate of trust.

'A power of sale need not be conferred on a trustee in direct or express terms, but may be implied from the purposes of the trust.' 26 R. C. L. 1285, § 136.

The 'certificate of trust' shows that only the beneficiary subscribers were to share in the 90 per cent basis for profit, and that Close should have 10 per cent. for his services as trustee. The only interest of Close, so far as is made to appear, was that he was to have 10 per cent. of the net profit on the sale of all lots not reserved by members of the syndicate, 'as compensation for handling the syndicate and looking after the subdivision and preparation for sale.'

This of itself would not disqualify Close as trustee. A reasonable compensation should be allowed to trustees for their services, care, and responsibility incident to their position. Muscogee Lumber Co. v. Hyer, 18 Fla. 698, 43 Am. Rep. 332; Kay v. Bostwick, 83 Fla. 308, 91 So. 112.

In the case of Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. 408, wherein the point raised was as to necessary parties to the suit, it was shown that the trustee, Fred L. Hall, was not only associated in interest as joint owner, but held an interest in common with the other beneficiaries.

The trust in question here was not one granted, conveyed, or consigned, but one which arose out of the declaration of Close--the person holding the legal title to the land. The 'syndicate plan' provides that:

'It is hereby agreed that the property is to be deeded to Harold E. Close, and he is to hold it in trust for the subscribers of the pool in accordance with their interests.'

It was deeded...