Wicker v. Board of Public Instruction of Dade County

• Decision Date: 22 May 1945
• Citation: 156 Fla. 7,22 So.2d 255
• Parties: WICKER et al. v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY.
• Court: Florida Supreme Court

22 So.2d 255

156 Fla. 7

WICKER et al. v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY.

Florida Supreme Court

May 22, 1945

Appeal from Circuit Court, Dade County; Paul D. Barns Judge.

A. B Rowe, of Bradenton, J. Lewis Hall, of Tallahassee, and Whitaker Brothers, of Tampa, for appellants.

John J Lindsey, of Miami, for appellee.

BUFORD, Justice.

Appeal is from judgment entered on demurrer sustained to a declaration.

The declaration is of considerable length; the effect of its allegations are that on the 28th of September, 1926, the Board of Public Instruction of Dade County entered into a written contract with Whitphel Properties, Inc., executed under its corporate seal, wherein it promised and agreed to purchase and pay for a certain tract or land in Dade County to be used for school purposes and Whitphel Properties, Inc. agreed to sell and convey the said land to the Board of Public Instruction of Dade County. A copy of the contract is attached to and made a part of the declaration and is in the following words and figures, viz.:

'This agreement, made and entered into this 28th day of September A. D. 1926, by and between Whitphel Properties, Inc., a Florida Corporation, party of the first part, and the Board of Public Instruction for the County of Dade, State of Florida, party of the second part.

'Whereas, the party of the first part is the owner of the following described property situate, lying and being in Dade County Florida, to-wit: Block Three (3) of Kensington Park, Seventh Street Addition, as per the plat thereof recorded in Plat Book 30, at page 32, of the Public Records of Dade County, Florida.

'And, Whereas, the party of the second part is desirous of purchasing the said property from the party of the first part.

'Now, Therefore, Witnesseth: That for and in consideration of the sum of Five Thousand ($5,000.00) Dollars, cash in hand paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged, and in further consideration of the several covenants, conditions and stipulations of this contract, the parties hereto hereby covenant and agree as follows, to-wit:

'Upon the performance of the conditions of this contract the party of the first part covenants and agrees to convey unto the party of the second part, by good and sufficient warranty deed, in fee simple, free and clear of all encumbrances, the said property hereinabove described.

'The party of the second part does hereby covenant and agree to pay therefor a purchase price of One Hundred and Thirty Thousand ($130,000.00) Dollars payable as follows, to-wit: $5,000.00 cash, the receipt of which is hereinabove acknowledged: $41,666.66 on or before one year from date; $41,666.66 on or before two years from date; and $41,666.66 on or before three years from the date hereof. Said indebtedness being evidenced by eight (8) certain promissory notes, copies of which are hereto attached.

'It is understood by and between the parties to this instrument that upon payment of the total aggregate sum due on this contract for deed on or before one (1) year from the date hereof that the party of the first part will issue to the party of the second part its warranty deed conveying the above described premises, in fee simple, free and clear of all encumbrances, and that the party of the second part will execute and deliver to the party of the first part a certain first mortgage securing the balance due on this contract, to be payable on or before the due date of said balance due hereunder and to incumber the said above described property.

'Permission is hereby granted to the party of the second part to enter into possession of the property and construct a School House thereon.

'It is understood and agreed that all taxes shall be prorated as of the date of this agreement and that all deferred payments shall bear interest at the rate of 8% per annum, payable semi-annually. All deferred interest payments hereunder shall bear interest at the rate of 8% per annum, payable semi-annually.

'If any of the said sums of money herein referred to of principal or interest be not promptly and fully paid within thirty (30) days next after the same shall severally become due and payable, or if each and every the stipulations, agreements, conditions and covenants of said promissory notes and this agreement, or either, are not fully performed, complied with and abided by, the said aggregate sum mentioned in said promissory notes shall become due and payable forthwith or thereafter at the option of the party of the first part, its successors or assigns, as fully and completely as if the said aggregate sum of $125,000.00 was originally stipulated to be paid on such day, anything in said promissory notes or herein to the contrary notwithstanding, and then and in that event the party of the first part shall have the right to foreclose this contract in the manner and form as is provided by law for the foreclosure of mortgages, and any and all rights of the party of the first part in case of a default under this contract shall be cumulative.

'In Witness Whereof the parties hereto have hereunto set their hands and seals, the day and year first above written.'

The declaration further, in effect, alleges that on the 22d day of May, 1928, Whitphel Properties, Inc., made, executed and delivered a good and sufficient warranty deed conveying such property to the Board of Public Instruction of Dade County, which deed was duly recorded in the public records of said county. The declaration then alleges:

'Plaintiffs further allege that at the time of execution of said contract hereinabove referred to and copy of which is attached as Exhibit 'A', the said Board of Public Instruction on the 28th day of September, 1926, did cause to be executed seven (7) certain promissory notes as part of the purchase price for said real estate hereinabove described, said notes being in the principal aggregate sum of $114,000.00 and said notes being numbered No. 1, for the principal sum of $2,000.00; No. 5 in the principal sum of $10,000.00; No. 6 in the principal sum of $10,000.00; No. 7 in the principal sum of $2,500.00; No. 8 in the principal sum of $6,166.66; No 11, in the principal sum of $41,666.66 and No. 12, in the principal sum of $41,666.68, a photostatic...