Wordinger v. Wirt
| Decision Date | 20 November 1933 |
| Parties | WORDINGER v. WIRT et al. |
| Court | Florida Supreme Court |
Suit by Charles T. Wirt and others against Elsie D. Wordinger. Decree for complainants, and defendant appeals.
Affirmed. Appeal from Circuit Court, Pinellas County; T H. Hobson, judge.
Bussey Mann & Barton, of St. Petersburg, for appellant.
Booth & Dickinson, of St. Petersburg, for appellee.
In a chancery suit for the strict foreclosure of a contract entered into between complainants and defendant for the sale and conveyance of lands, the chancellor entered a final decree finding the amount due upon the contract, the amount remaining unpaid, ordered a sale for the amount of principal and interest then due, and in the decree prescribed that the sale directed to be made to satisfy installments of the purchase price then due and unpaid, should be subject to the lien of the complainant--vendor for a remaining balance unpaid but not due at the time of the decree, because of the absence of an acceleration clause from the vendor's contract which provided for payment of the purchase price in monthly installments of $50 each until the whole should be paid. Upon appeal from the final decree error is predicated upon that ruling as well as upon an antecedent ruling which permitted an amendment of the bill over defendant's protest.
Strict foreclosure of a vendor-vendee contract for the enforcement of the purchase price agreed to be paid, but remaining unpaid under such contract for the sale and conveyance of lands, is authorized in this state, and the right of the vendor to sue for same is supported by a number of our decisions. Smalley v. Sovereign Finance Co., 102 Fla. 32, 135 So. 558; Schmidt v. Kibben, 100 Fla. 1684, 132 So. 194; Edmons v. Gracy, 61 Fla. 593, 54 So. 899; Grentner v. Hay, 98 Fla. 547, 124 So. 816; Aycock Bros. Lumber Co. v. First Nat. Bank, 54 Fla. 604, 45 So. 501; Miami Bond & Mortgage Co. v. Bell, 101 Fla. 1291, 133 So. 547; Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729; Alabama-Florida Co. v. Mays (Fla.) 149 So. 61.
We think the amendment to the bill of complaint was properly allowed under section 26 of chapter 14658 (1931 Chancery Act), section 4902(7), 1932 Supplement Compiled General Laws, as well as on the authority of what was said in Griffin v. Societe Anonyme La Floridienne, 53 Fla. 801, 44 So. 342, wherein this court said:
'Where, upon the final hearing, it clearly appears from the evidence that the complainant has a case which entitles him to relief, but which by reason of some defect or omission in the allegations of the bill is not brought fairly within the issue, he will generally be permitted to amend the bill, and adapt its allegations to the case as proven, but when the proposed amendment would change the issue, or introduce new issues, or materially vary the grounds of relief generally, an amendment of the bill is not permissible.'
As finally amended, the bill of complaint presented a typical case for strict foreclosure of the alleged contract by which it appeared that complainant had agreed to sell certain lands to the defendant, and defend...
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Coral Gables, Inc. v. Patterson
...term is sometimes used without reference to the harsh and sometimes inequitable rule as understood in English Chancery, Wordinger v. Wirt, 112 Fla. 822, 151 So. 47; see 42 Corpus Juris 21; Aycock Lumber Co. v. First Bank, supra. But a vendor may have a cancellation of the purchaser's contra......
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Barnett v. Dollison
... ... Schmidt et ux. v. Kibben, 100 Fla. 1684, 132 So ... 194; Miami Bond & Mortgage Co. v. Bell et ux., 101 ... Fla. 1291, 133 So. 547; Wordinger v. Wirt, 112 Fla ... 822, 151 So. 47 ... In ... Smalley v. Sovereign Finance Co., 102 Fla. 32, 135 So ... 558, we held: ... ...
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Adkinson v. Nyberg
...the sale being subject to payment by the purchaser of the full balance to become due under the agreement for deed. See Wordinger v. Wirt, 112 Fla. 822, 151 So. 47 (1933). Of course, the vendees' right to redeem would be protected just as in a traditional foreclosure of mortgage. Robbins v. ......
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Johnston v. Johnston
... ... made necessary by reason of lack of allegations in the ... original bill, and such amendments are permissible under our ... practice. Wordinger v. Wirt, 112 Fla. 822, 151 So ... 47; Zetrouer v. Zetrouer, 110 Fla. 312, 149 So. 343; ... Biscayne Realty & Ins. Co. v. Ostend Realty Co., 109 ... ...