37 Fla. 609 | Fla. | 1896
David L. Yulee, as administrator of the estate of' Moses E. Levy, deceased, filed a bill against appellants, John M. Hendry, Archibald and Norman Campbell, for the purpose of cancelling a written agreement for the sale-of several sections of land situated in Alachua county, entered into by and between the decedent, Levy, and appellants. The written contract to convey the land was made in March, 1854, and Levy agreed thereby to sell the sections of land described for seven thousand dollars in three installments, evidenced by promissory notes executed by the purchasers, and due respectively January first-, 1855, January first, 1856, and January first, 1857. The agreement was to convey the lands by warranty deed when the last payment of the notes was made.
The material parts of the bill, as amended, allege the contract of sale from Moses E. Levy to the purchasers, Hendry and the Campbells, the death of the former, and the appointment of David L. Yulee as his administrator; that the defendants wholly failed to pay their said notes when they became due, and that Yulee as administrator brought suit in Columbia county on the notes and obtained judgment against the Campbells. The date of the judgment was in the year 1863, during the late Civil
The answer of defendant admits the death of Levy and grant of letters of administration on his estate to David L. Yulee, and also the written agreement of sale of certain lands as alleged in the bill, except as to the description of the lands given, and as to this the answer sets out what is alleged to be the correct description of the lands agreed to be conveyed by Levy upon the judgment of the notes given for the purchase money of the same.- It is alleged that upon the execution of the contract defendants went into possession of the lands, and have held possession ever since. It is admitted that suit was instituted on the notes and judgment obtained thereon in Columbia county in the year 1863, but it is alleged that defendants paid the judgment in full on the 2fith day of Jan.uary, 1864, and had the same fully discharged and satisfied.
Defendants further answered that Moses E. Levy died before either note became due, and when they became due defendants were informed that Levy left a will, and there existed at the time grave doubts as to whether David L. Yulee was authorized to receive payment of the notes and execute a deed, and for that reason tender of payment was not made; that when the judgment was obtained on the notes, the currency of the country was Confederate money, and when levy was about to be made, defendants offered to turn over the lands for the judgment, or pay the same in Confederate money, and that complainant refused to take the lands, but agreed to accept Confederate money; that defendants sold a stock of cattle for Con
Defendants allege that they had paid the taxes on the lands, and complainant had not, and that in the year 1864, after the judgment was paid, they were informed that complainant refused to pay the taxes on the lands, and referred the tax collector to the defendants for payment.
It is admitted that the court house and records in Columbia county were destroyed by fire, but it is alleged that the judgment was paid prior to that time.
Defendants also filed a cross-bill, in which they allege fully all the material facts set up in their answer, and pray for the affirmative relief of the specific execution of the written agreement to convey the lands.
The answer to the cross-bill admits the allegations as to the agreement to sell the lands, and the judgment rendered in Columbia county in 1863. The allegation as to possession of the lands by complainants in the cross-bill is denied, as well as all the other material allegations as to the agreement to accept Confederate money in payment of the judgment, or the authority of any one to accept the same for defendant. It is alleged that defendant could not, in the execution of his trust, accept Confederate money in payment of the purchase money for the lands, and that he did not insist on, or press the payment of the said judgment. It is also alleged that complainants were barred by lapse of time and the staleness of their claim, as well as by the statute of limitations, from
After the issues were made up, but before proof taken, David L. Yulee died, and Samuel Benlisa was appointed administrator de bonis non on the estate of Moses E. Levy, deceased, and was admitted as a party in the proceedings in the place of deceased administrator.
On final hearing the cross-bill was dismissed, and the contract for the sale of the lands was cancelled, on the allegations and proofs under the original bill.
A material and controlling question on the appeal in this case relates to the alleged payment with Confederate money of the judgment obtained in Columbia county. If this payment was ineffective to discharge the debt, appellants were in great laches in not paying, or offering to pay, for the lands, as it is not shown, or attempted to be shown, that any other payment was made, or offered to be made, on the land notes. It is alleged, and not denied, that appellants were insolvent, and had no effects out of which the purchase money could be made, and we think it is clear from the evidence that they were not in possession of the lands before the bill was filed against them. The lands were wild and unimproved, and there is no evidence of any actual possession on the part of appellants before suit was brought. Subsequent to the war some of the lands were sold for taxes, and parties other than appellants obtained possession under tax deeds, and the administrator sued for and recovered possession of the lands held under such deeds. It is also shown that he paid taxes on the lands and had an agent to protect them from depredations. Appellants, it appears, paid ■some taxes on the lands and looked after them to some
The contract for the sale of the lands was made in. 1854, and it is alleged, and not denied, that the prop-, erty had greatly increased in value at the time the bill was filed. On account of the long period of time since-the making of the contract of purchase, and the-changed condition of the property as to value, there-can be no abasis of any equity for a specific performance of the contract, unless the judgment on the notes- and the alleged payment with Confederate money changes the case. Knox vs. Spratt, 23 Fla. 64, 6 South. Rep. 924. In proof of the payment of the-judgment, appellants put in evidence a receipt as follows:
“Lake City, Florida, Jan’y 25th, 1864.
State of Florida, ]_
Columbia Couuty. 1
Be it remembered that on this day, received into the-registry of this court the full amount of principal, interest and costs in a suit pending in said court, to-wit: David L. Yulee, administrator of Moses E. Levy, vs. John M. Hendry, Archibald Campbell and Norman Campbell, at the hands of John M. HeDdry.
Witness my name and seal of office day and date above written.
(Signed) Samuel R. Mattaie, Clerk C. C. C. C.”
It appears, both from the pleadings and proof, and. is conceded by counsel for appellants that the amount received by the clerk, and referred to in the receipt,, was in Confederate money, and the first contention is, that the payment of the amount due on the judgment
The failure of appellants to show any valid payment of the judgment leaves them, as before stated, in great laches in not complying with their contract of purchase. Aside from the fact that judgment was obtained on the notes, the court would not hesitate to cancel the contract. Under the circumstances of the case, and in view of the insolvency of appellants, as shown, we are of the opinion that the court was right in cancelling the contract.
Appellants are in no condition to ask for a specific performance of the contract, and, in general, when a specific performance is denied, a rescission will be decreed. Kirby vs. Harrison, 2 Ohio St. 326, S. C. 59 Am. Dec. 677. The complainant in the original bill
The decree is affirmed, with the modification indicated, and an order will be entered accordingly.