58 Fla. 480 | Fla. | 1909
The appellant as complainant below filed his bill in equity in the circuit court of Duval county on
1. That said Francis F. L’Engle, being then and there seized and possessed of the lands therein described, executed under his hand and seal to your orator in the presence of witnesses thereuuto subscribing their names as such a certain agreement in writing, on or about, to-wit: the first day of February, A. D., 1884, by the terms of which agreement said Francis F. L’Engle leased to your orator that certain tract or parcel of land in the county of Duval, and State of Florida, described to-wit: as fractional lot five in block one hundred and ninety-eight, La Villa, a sub-division of Jacksonville, for the period of ninety-nine years, upon consideration, to-wit: of an initial payment of five dollars and the payment thereafter four times in each year of the sum of five dollars, it being further covenanted in said agreement by said Francis F. L’Engle for himself and his legal representatives that upon the faithful performance by your orator of those holding through him of the conditions of said agreement and the payment at any time within said period of ninety-nine years aforesaid of the sum of three hundred dollars, he, or they, would execute and deliver to your orator or those holding through him a good title in fee to the land described in said agreement.
2. That your orator in pursuance of said agreement made the initial payment of five dollars as aforesaid, and thereupon took possession of the land embraced in said agreement as above described; that thereafter and until about, to-wit: June 3, A. D., 1894, he paid all and every the sums due for rent and a portion of the principal sum of three hundred dollars aforesaid; that on or about, to-
3. That said Francis F. L’Engle was a resident of the county aforesaid at the time of his death and had been for a long time prior thereto; that said Francis F. L’Engle died in said county, and State in the month of August, 1899; that up to the time of his death and for a long time prior thereto said Francis F. L’ Engle was an attorney at law in said city and engaged in the practice of his profession; that your orator is an ex-slave of little education and without capacity to enter and keep accounts and made no effort to do so, but relied entirely upon said Francis F. L’Engle with regard to all business dealings had with him; that your orator is advised and believes, and upon such advice and belief avers, that said Francis F. L’Engle kept full and complete accounts of all transactions between your orator and himself in a book or books kept by him for that purpose.
4. That notwithstanding the surrender of said agreement as aforesaid and said promise of Francis F. L’Engle, neither he, during his lifetime, nor his legal representatives since his death, has executed or delivered to your
5. That about ten years prior to the death of said Francis F. L’Engle your orator erected upon said premises three frame houses which he thereafter rented; that your orator from the date of said written agreement up to and until about, to-wit, January 1, A. D., 1903, was in the peaceable, quiet and exclusive possession of said land embraced in said agreement, and in the exclusive permanency and perception of the income, rents and profits thereof; that after the surrender of said written agreement and until said January 1, A. D., 1903, your orator exercised as the absolute equitable owner full control thereover.
6. That said Francis F. L’Engle, being then and there seized and possessed of the lands therein described, executed under his hand and seal to the person therein named as grantee in the presence of witnesses thereunto subscribing their names as such a certain agreement in writing on the 29th day of January, A. D., 1896, which instrument was thereafter duly proven for record and recorded in the office of the clerk of the circuit court for the county aforesaid, a copy of which agreement is hereto annexed, marked Exhibit “A” and prayed to be made a part hereof, the original of which agreement will be produced at the hearing hereof.
7. That said agreement was for a valuable consideration assigned to your orator by Annie K. Smith, the grantee therein on or about, to-wit: April 29th, A. D., 1896; that said Francis F. L’Engle recognized said agree
8. That your orator has, since the date of said assignment and up to and until about, to-wit: the 1st day of January, A. D., 1903, been in the quiet, peaceable and exclusive possession of said land described in said written agreement so assigned, and in the exclusive permanency and perception of the income, rents and profits thereof; that your orator up to and until about, to-wit: said 1st day of January, A. D., 1903, has performed all and every the conditions, covenants and stipulations of said agreement so assigned to him and by such assignment, so recognized by said Francis F. L’Engle agreed to be performed up to and until that time; that during said time your orator has not only paid the sums due as rent upon said property but has paid a large portion of the principal sum of five hundred dollars, to-wit: about one hundred and fifty dollars.
9. That said Francis F. L’Engle duly executed his will which was after his death duly admitted to probate, a copy of which is annexed to this bill, marked Exhibit “B” and made part hereof for the .purpose of showing what was devised therein and the relation of the parties to said devisees.
10. That on or about said 1st day of January, A. D., 1903, said Claude L’Engle, claiming to act as trustee under said Will for one Frank Fatio L’Engle, unlawfully dispossessed and wrongfully ousted your orator from the possession of the land embraced in each of the two agreements aforesaid.
11. That your orator so wrongfully ousted from possession of the lands so granted to him in the lease of about to-wit: February 1st, A. D., 1884, before about, to-wit: the 3rd day of June, A. D 1894, performed all and every the conditions on his part agreed to be performed in
12. That your orator had, before being so unlawfully evicted therefrom, erected valuable improvements upon said land embraced in said agreement of January 29th, A. D., 1896; that said Claude L’Engle, claiming as trustee for Frank Fatio L’Engle, under said devise to him as such trustee under said Will has since said wrongful dispossession of your orator of said premises, been continuously receiving as such month by month, the rents, income and profits thereof, which as your orator is advised and believes and so states the fact to be has amounted to a large sum of money, the exact amount of which is to your orator unknown, but which upon information and belief he states to be quite sufficient to pay off and discharge not only the rent month by month provided for in said agreement, but also to pay off and discharge in full the purchase money for said premises, and upon the payment of which your orator was to receive by the terms of said agreement a
To the end therefore that said several defendants be made parties defendant hereto, and answer, your orator prays as follows:
1. That said defendants discover to this court the agreement of, about to-wit: February 1st, A. D., 1884, aforesaid; and all and every book or memorandum or books or memorandums in the possession or control of them or either of them bearing upon or in anywise relating to the tw,o agreements aforesaid.
2. That said defendant Charlotte J. L’Engle, as executrix of the will of Francis F. L’Engle, deceased, be decreed to execute and deliver to your orator a good and sufficient deed in fee simple to said parcels of land and each thereof.
3. That said Claude L’Engle, individually, and as trustee for Frank Fatio L’Engle, be required to account for all sums received by him as incomes, rents and profits of said land described in said agreements; and that a full accounting be had of all sums paid in pursuance of said agreements during the lifetime of said Francis F. L’Engle and thereafter.
5. That your orator may have such other and further, or other and further relief as the nature of this case requires.”
To this bill the defendants demurred on the ground of the want of equity, and because of laches apparent upon the face of the bill.
This demurrer was overruled and the defendants jointly answered, in which the making and delivery of the agreements sought to be specifically performed are admitted as alleged, but the answer denies that said agreements have been complied with by the complainant as alleged in the bill; and on the part of the defendant Claude L’Engle said answer denies that he took wrongful possession of the premises involved from the complainant and alleges that the complainant finding himself unable to pay what he owed on said lots voluntarily surrendered them to him and voluntarily went with him and notified all the tenants on the premises to attorn to him, the said L’Engle.
A master was appointed to take and report the testimony, a large volume of which was taken and reported, and at the final hearing the chancellor, on the bill, answer and testimony reported, rendered a final decree finding the equities to be with the defendants and dismissing the bill at complainant’s cost. This decree the complainant below brings here for review by appeal.
We think the court below erred in rendering the decree made. Insofar as the question of laches is concerned we do not think under the circumstances in proof that the complainant should be shut off from the relief he seeks thereby. According to the provisions of one of the contracts sought to be enforced made sometime during the
The bill alleges that the complainant in the year 1903 was wrongfully dispossessed of said premises by the defendant Claude L’Engle. The answer of the latter denies this and alleges that the complainant at that time voluntarily surrendered to him the possession of said premises and of all further claim thereto, and went with him in person and introduced him to all the tenants occupying the premises and told each of them of his surrender of said premises and that they should from that time forward attorn to him, L’Engle. This denial and allegation in the defendant’s answer was a most material issue in the case, and the proofs disprove it overwhelmingly. This being true the whole answer of the defendants lost its weight as evidence and became nothing more than a pleading in the cause. An answer contradicted in a material point loses all weight as evidence, and serves the purpose only of a pleading in the cause. Prout v. Roberts, 32 Ala. 427; Gunn v. Brantley, 21 Ala. 633; Countz v. Geiger, 1 Call. (Va.) 165; Phares v. Leachman, 20 Ala. 662.
The decree of the court below in said cause is hereby reversed and the cause remanded with directions for the entry of a decree adjudging the complainant to be entitled to a deed of conveyance from the defendant executrix of F. F. L’Engle, deceased, to fractional lot five in block one hundred and ninety-eight, La Yilla, a sub-division of the city of Jacksonville, and ordering said deed to be executed and delivered, and requiring the defendant Claude L’Engle to surrender to the complainant the possession of all of said lots, and requiring him to account fully for all of the rents, income and profits of all of said lots since he took
The aid of a court of equity to enforce the specific performance of a contract to convey real estate is not a matter of right, but it may be granted in sound judicial discretion governed by established principles of law designed for the administration of justice. Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 South. Rep. 574, 127 Am. St. Rep. 155; Asia v. Hiser, 38 Fla. 71, 20 South. Rep. 796; 10 Current Law, 1674.
If there is no adequate remedy at law and a contract is valid, definite, complete and capable of being mutually enforced with practical and just results, and the complainant is not in laches and is not estopped by judgment or by matters in pais, and there is no countervailing equity, the contract may be specifically enforced according to its valid purpose upon such equitable terms as the facts will warrant. When a complainant shows by proper allegations and a clear preponderance of unequivocal evidence that he is equitably entitled to the specific performance of a contract to convey land, and offers to do equity, and no laches or opposing equities appear, the contract should be specifically enforced that justice may be done. 10 Current Law 1690; 6 Current Law 1508.
By the law of the forum where the oath is not waived, the direct unequivocal responsive averments of an answer under oath to a bill in equity is evidence for the defendant, and is decisive unless overcome by something more than the testimony of one witness. Where a complainant in equity calls for an answer under oath, the competency of the defendant as a witness, and the credibility of the defendant’s testimony as one witness are thereby conceded, and cannot ordinarily be questioned; but the pro
The credibility and weight of the evidence adduced in chancery causes are primarily for the determination of the chancellor, and the appellate court will resolve doubts in favor of the findings of the court below; but where the testimony is taken before an examiner and the credibility of witnesses is not directly put in issue, and the circumstances of the case do not discredit the witnesses, a finding against the apparent weight and the clear preponderance of the testimony should be reversed by the appellate court unless it appears from the whole record that no material error has been committed in the finding.. Where a bill in chancery discloses equity for the complainant, and there is no countervailing equity, and material averments of the answer under oath are overcome by a preponderance of the testimony, and there is apparently credible evidence in support of all the material allegations of the bill, and the evidence does not preponderate
The complainant here sufficiently alleges an apparently valid and complete contract capable of mutual enforcement for its practical and just purposes, and offers to do equity. No laches or opposing equities appear in the pleadings. The credibility of the witnesses is not directly put in issue. The contract to convey and payments thereunder are admitted. Averments in the sworn answer to the effect that the defendant had forfeited or surrendered or abandoned his rights under the contract are material, and they have been directly contradicted by at least two witnesses whose credibility was not directly put in issue and whose testimony has not been met by other testimony in addition to the answer. There is apparently credible evidence in support of the equities alleged, and of the offer to do equity. No countervailing equities appear in the evidence and there are apparently no controlling circumstances in the case. The evidence does not clearly preponderate in favor of the defendant. It does not appear from the whole record that no material error has been committed. In this state of the case the decree dismissing the bill should be reversed and the cause remanded for further proceedings according to law.