79 Fla. 402 | Fla. | 1920
Appellee brought a suit against the appellant above to enforce the specific performance of a contract for the sale of land. In the amended bill of complaint it is alleged’ that after the making of the con
A demurrer to the amended' bill of complaint on the ground that A. O. Freeman is not the only proper party to the bill was overruled. Two pleas were filed and stricken by the chancellor. An appeal from these interlocutory orders was taken by the defendant.
“Where the vendor or lessor, after the contract conveys the land to a purchaser who takes with notice of the contract, actual or constructive, or who does not part with a valuable consideration for his purchase, such
“All parties claiming an interest in the land obtained from the vendor subsequent to the contract, and with notice of the contract, have been held to be necessary-defendants.” 36 Cyc. 768. See also Fagan v. Barnes, 14 Fla. 53, text 57; 25 R. C. L. 427; Drake Lumber Co. v. Branning, 66 Fla. 543, 64 South. Rep. 263. Drake v. Brady, 57 Fla. 393, 48 South. Rep. 978.
The bill of complaint is predicated upon an equity for specific performance with an accounting as an incident; and as the complainant alleges a-conveyance of an interest in the land, it was encumbent upon the complainant to make necessary parties, which includes the voluntary grantee from the yendór; and this is- so even though there is an alternative prayer for damages if title cannot be conveyed.
“While a court of equity does not entertain jurisdiction where the sole object of the bill is to obtain compensation for the breach of a contract, except where the contract is of equitable cognizance merely,' it would seem that if the -complainant filed his bill in good faith, supposing at the time he instituted his suit that a specific performance could be granted, and¡ not knowing that the defendant had previously parted with the title, the bill may be retained for compensation. Walworth, Ch., Moss v. Elmendorf, 11 Paige, 277. Hatch v. Cobb, 4 John. Ch. 559. (Kent, Ch.) Kimpshall v. Stone, 5 Id. 193. Wood
The bill will not be retained to award damages when specific performance cannot - be granted, because of the absence of necessary parties, since the complainant alleges a conveyance by the defendant of an interest in the land to a third party, thus showing a knowledge of facts that would preclude specific performance on the bill as framed.
The court will not retain the bill to award damages where the complainant knew a conveyance of title could not be made by the party against whom the suit is brought. See Fry on Specific Performance of Contracts (New Ed. Am. Notes) p. 451 Notes.
There being an absence of a necessary party, the demurrer to the amended bill of complaint on that ground should have been sustained. >
The pleas were properly stricken.
The decree overruling the demurrer to the bill of complaint should be reversed and the cause remanded for appropriate proceedings.
J
Per Curiam. — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts-of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that, the decree herein be and the same is hereby reversed.