40 F.2d 583 | 5th Cir. | 1930
This is an appeal from a decree dismissing on final hearing appellant’s bill in equity against appellees to rescind an option to purchase two city lots in Miami and to establish a vendee’s lien for $50,000 paid for the option.
The lots were adjoining lots, each being 50x150 feet; and the two together fronted north 100 feet on Flagler street and east 150 feet on Southwest Eighth avenue. The north 10 feet of both lots prior to the option
We are of opinion that the easement, which the city of Miami acquired by' dedication from Flynn across the north 10* feet of the lots involved, constitutes an incumbrance. An “incumbrance,” within the meaning of covenants against incumbrances, is a burden or charge upon land. The general rule is that an easement upon any appreciable part of a valuable city lot is an ineumbranee. Graybill v. Ruhl, 225 Pa. 417, 74 A. 239; Ritter v. Hill, 282 Pa. 115, 127 A. 455; McAndrews v. Camden National Bank, 87 N. J. Law, 231, 94 A. 627, Ann. Cas. 1917C, 146; Hershorn v. Rubenstein, 250 Mass. 288, 156 N. E. 251; Lavey v. Graessle, 245 Mich. 681, 224 N. W. 436, 64 A. L. R. 1477; Sandum v. Johnson, 122 Minn. 368, 142 N. W. 878, 48 L. R. A. (N. S.) 619, Ann. Cas. 1914D, 1007; Bank of Alaska v. Ashland, 128 Wash. 572, 224 P. 7; 20 C. J. 1252 ; 27 R. C. L. 503. In the last two of the above-cited cases it is recognized that an existing easement across a rural tract of land which does not appreciably diminish its value does not constitute an incumbrance, but it is said that a distinction exists between rural and urban property for the reason that an easement across a tract of land in the country does not always entail a loss but may be a benefit, whereas any easement across a city lot that appreciably decreases its size necessarily diminishes its value. The same distinction was recognized in a ease arising in a federal District Court in Florida, Meacham v. Burgiss, 1 F. (2d) 47; but so far has not been drawn by the Supreme Court of Florida. In Van
There are no Florida Supreme Court decisions to the contrary, and we accept it as an established rule of property in that state that under an executory contract of purchase, containing a covenant against incumbrances, whether of rural or urban property, the vendee is entitled to rescind in the event there is an incumbrance which the vendor cannot or will not remove and which the vendee himself cannot remove by an application of the purchase money; and that the vendee in such a case is given an enforceable lien in equity upon the land as security for the repayment of what he had paid in performance of the contract.
This established rule, being a rule of property, is to be recognized and enforced in federal courts. 25 C. J. 839. The contract here sued on is executory, and we are not concerned with a different rule which applies to executed contracts.
Flynn’s deed of dedication to the city of Miami of the north 10 feet of the lots antedated his deed to appellees, but the latter deed was recorded first. Appellees cannot rely on the recording statute, as it is admitted in their answer and in the husband’s testimony that they acquiesced in and ratified the dedication of the easement to the city before the date of their option to Dean. Dean had no actual or constructive knowledge of the incumbrance created by the easement at the time he acquired his option, or until after he had assigned it to appellant. The sidewalk was in place and Dean had knowledge of its existence at the time he took the option, but he did not know that it was on the lots until after the date of his assignment to appellant. Dean’s knowledge of the existence of the sidewalk was not sufficient to impute to him notice or knowledge that it was on the lots. Edmundson v. Mullen, 215 Ala. 297, 110 So. 391; Trice v. Kayton, 84 Va. 217, 4 S. E. 377, 10 Am. St. Rep. 836. He therefore had the right to rely upon the covenant of appellees to convey title free from the incumbrance of the city’s easement. The option ran to Dean, “his heirs or assigns,” and therefore was assignable by its very terms. 27 R. C. L. 345.
It is unnecessary to determine whether or not there was error in the ruling of the court which excluded testimony tending to show that appellant had no knowledge, actual or constructive, of the existence of Flynn’s deed of dedication to the city at the time it gave its president’s note in payment for the option, and that an assignment was made but destroyed because it was thought to be defective; for appellant stands in Dean’s shoes and is entitled to assert whatever rights he had, although at the date of the assignment offered in evidence it had constructive notice of the incumbrance. A purchaser with notice from a purchaser without notice takes a good title. Doyle v. Wade, 23 Fla. 90,1 So. 516,11 Am. St. Rep. 334; Feinberg v. Steams, 56 Fla. 279; 47 So. 797, 131 Am. St. Rep. 119.
The note for $5,000, which Dean accepted for his assignment, was sufficient to constitute a valuable consideration. Appellees cannot object that the assignment was given for léss than the value of the option, as the optionee was satisfied with his bargain and disclaimed any interest in the controversy. They remain bound to the assignee as effectually as they were originally bound to the optionee. Musselwhite v. Oleson, supra; Reed v. Moore, 91 Fla. 900, 109 So. 86. The certified cheek for $50,000, offered in payment of the first installment upon the purchase price, was treated by the duly authorized attorney for appellees as a sufficient tender, and a legal tender was thereby waived; but the question of sufficient tender becomes immaterial, because the vendor was not able to convey an unencumbered title. 27 R. C. L. 347.
Our conclusion is that, upon the pleadings and the evidence adduced, appellant was
Tbe decree is reversed, and tbe cause remanded for further proceedings not inconsistent with this opinion.