69 Fla. 225 | Fla. | 1915
This was a suit brought in the Circuit Court for Alachua County in equity, by the appellants against the appellees for the specific performance of a parol agreement to convey lands.
The bill alleges that the appellee Annie E. Bailey, on or about the 16th day of April, 1913, sold to the appellants Williams and Hardee all her title, interest and claim to certain lands in Alachua County, Florida, described as follows: The south half of the southwest quarter of section twenty-four, and the east half of the northwest quarter and the northwest quarter of the northwest quarter of section twenty-five all in Township Ten South Range Fifteen East containing two hundred acres of land more or less; that Annie E. Bailey was the holder of the legtl title to the lands and promised to execute and deliver to Williams and Hardee a quit-claim deed thereto for the 'Consideration of three hundred dollars and the further consideration of a quit-claim deed to be executed and de
There are other allegations in the bill to the effect, that Williams and Hardee have not sufficient time before the trial of the ejectment suit to have their legal title to the lands “established in a Court of Equity”; that a judgment
The answer admits that Annie E. Bailey was the holder of the legal title to the land on the 16th day of April, 1912, but denies that she agreed to convey the same to Williams and Hardee for Three hundred dollars, or for any consideration, and avers that she owned the land when she conveyed the same to Thomas W. Fielding. She admits receiving the check for $128.39 from Williams and Hardee, but denies that any part of that sum was paid to her for or in part payment for the land, but that the check was given to her as part payment for money that Williams and Hardee as her attorneys had collected for her. She admits that J. A. Williams and wife and L. P. Hardee executed a quit-claim deed to her for the one hundred and sixty acre tract, but denies that it was by way of consideration for a quit claim deed by her to them for the two hundred acre tract; that the one hundred and sixty acre tract rightfully belonged to her at the time Williams and Hardee quit-claimed to her; that Williams and Hardee never entered into possession of the two hundred acre tract with her knowledge and consent, and denies that they ever entered into possession of the land. She admits that she refused to execute a quit-claim deed to them in February, 1913, when they requested her to do
The answer of Thomas W. Fielding denies all allegations of the bill except that Annie E. Bailey executed a warranty deed to him on January 11, 1913, as alleged, which allegation he admits. His answer avers that at the time of such purchase he had no notice that any person other than Mrs. Bailey had any claim to or on the land, and that the complainants have no interest in the land nor any title thereto. A demurrer to the bill is incorporated in the answer on the grounds: that the bill is without equity; that this court has no jurisdiction; that complainants have an adequate remedy at law; that there was no contract in writing between Mrs. Bailey and Williams and Hardee for the conveyance of the land by her to them, and that the bill affirmatively shows this to be true; that the possession of the land by Abbott was not notice of the alleged equitable title of Williams and Hardee, but was presumed to be the possession of Mrs. Bailey, the holder of the legal title; that the bill does not show that he had notice of the agreement between Mrs. Bailey and Williams and Hardee; that Williams and Hardee are not proper parties complainant because they had be
On May 13, 1913, an order was made granting a temporary injunction as prayed, upon the complainants entering into a bond in the sum of one thousand dollars with sufficient sureties to be approved by the clerk, conditioned upon paying the defendant all costs, damages and expenses that he may sustain if the injunction be dissolved, or the bill dismissed on final hearing. The bond was filed and approved by the clerk, and an injunction was issued on June 7,1913, enjoining the defendants Annie E. Bailey and Thomas W. Fielding from further prosecuting the ejectment suit to obtain possession of the two hundred acre tract.
Replications were filed to the answers of the defendants and on July 1, 1913, an examiner was appointed to take testimony. In December, 1913, the examiner filed his report, and on March 5, 1911, the cause was set down by defendants for final hearing. The complainants and defendants filed motions before the Chancellor insisting upon their respective objections made before the examiner to the reception and rejection of evidence. These motions were heard and disposed of by the Chancellor, and a final decree was made and entered finding the equities “are not with the complainants,” dissolving the injunction theretofore issued, arid dismissing the bill at complainants’ cost. From this decree the complainants appealed.
The complainants Williams and Hardee, two of the appellants- here, are attorneys at law, and as such represented Mrs. Bailey in her suit against the executors and in looking after her interests in the estate as guardian of her minor children, for which service it does not appear what compensation they were to receive. On April 6, 1912, the sheriff of Alachua County, under instructions from Williams and Hardee, levied the execution which
In August, 1912, Williams and Hardee entered into a contract with W. L. Abbott, one of the complainants below, to sell him the two hundred acre tract. Abbott went upon the place, built some houses and repaired fences and spent in improvements about five hundred dollars. Mrs. Bailey at the time was living on the place, her son had planted a crop on it, but had abandoned it, and she was in charge of the crop and pasturing her stock on the land. The price which Abbott agreed to pay Williams and Hardee for the place was two thousand dollars, he paid ten dollars cash and went on the place and made the improvements as stated. In , 1912, Mrs. Bailey conveyed the two hundred acres to Thomas W. Fielding by warranty deed for a consideration of four hundred dollars, and on the same day Fielding instituted an action of ejectment in the Circuit Court for Alachua County, in the name of Mrs. Bailey for his use against Abbott for the
It is contended by Williams and Hardee, and such contention is the basis of this suit, that they entered into a parol agreement with their client Mrs. Bailey, whereby for the consideration of three hundred dollars in money and a quit-claim deed from them to her for the one hundred and sixty acre tract she would execute a quit-claim deed to them for the two hundred acre tract; that pursuant to such agreement they paid her the three hundred dollars which was included in the check mentioned, and executed and delivered to her the quit-claim deed to the one hundred and sixty acres; that they took possession of the two hundred acres, but she refused to comply with the agreement on her part, and has not executed the quitclaim deed to them for the two hundred acres. This suit is to compel the specific performance of that alleged agreement. Mrs. Bailey denies the existence of such an agreement, denies that she authorized them to take possession of the land; avers that she was in possession during the year 1912, had never surrendered possession to any one, nor authorized any one to go on the land and make improvements; that the three hundred dollars paid to her by Williams and Hardee was collection by them for her from the sale of timber on the one hundred and sixty acre tract; that in executing the guardians deed to them for the two hundred acre tract and in consenting to the sale of the land under the execution she acted according to their advice as her counsel, and that she has never received any part of the $891.96 except the sum of one hundred and twenty-eight and 39-100 dollars included in the check for Four hundred and twenty-eight and 39-100 dollars paid to her on April 16, 1912, and fifty dollars at
Many of the assignments of error are based upon the defendants’ objections to questions propounded by solicitors for the defendants to complainants’ witnesses. These questions sought to elicit from L. P. Hardee and J. A. Williams, who constituted the law firm of Williams and Hardee, who were complainants below and witnesses in their own behalf, information as to their professional relations with Mrs. Bailey, the manner of the discharge of their duties to her, and the particular details of the various transactions which led up to and culminated in the alleged contract between them and Mrs. Bailey for the purchase by them of the two hundred acre tract. We do not regard the information sought by these questions as either “improper, immaterial or irrelevant”; nor that the questions were improper in cross-examination. These two witnesses in their own behalf testified concerning an agreement which they said Mrs. Bailey had made with them for the conveyance of certain lands, and which they were seeking to enforce. It was permissible to inquire fully into this transaction to discover its faults, if any, to inauire into the consideration, to ascertain the relations the parties bore to each other, and whether the requisite good faith and fair dealing had been practiced. All of this went to the very vitals of the agreement about which the witnesses testified. In such matters a wide latitude of cross-examination is allowed. If the evidence sought could throw light on the transaction it was admissible. Volusia County Bank v. Bigelow, 45 Fla. 638, 33 South. Rep. 704.
The above was a case involving fraud, and the court
The record in this case leaves some very salient and important points in doubt, which it was absolutely necessary for the complainants to make clear, not by a preponderance of the evidence merely, but indisputably certain almost to the degree of demonstration to entitle them to the relief prayed for in the bill. In all their dealings with Mrs. Bailey, their client, particularly in making the agreement with her for the purchase of the two hundred acre tract, did Williams and Hardee explain to her fully and fairly every detail of the transactions, did they exercise toward her that uberrima fides which the relations between them of attorney and client required, and the law demanded? Why did it become necessary to distribute between the heirs of J. S. Bailey the $891.96 collected by the attorneys for Mrs. Bailey from the executors of the will of J. S. Bailey on the judgment obtained by them for Mrs. Bailey ? Why was Mrs. Bailey required to share that sum so collected on her judgment with the heirs of J.
It is a well established principle of law that specific performance of a contract for the sale of lands is not a matter of right in either party, but a matter of sound reasonable discretion in the court. The question is nor what the court must do, but what it may do under the circumstances. Maloy v. Boyett, 53 Fla. 956, 43 South. Rep. 243; Asia v. Hiser, 38 Fla. 71, 20 South. Rep. 796; Nobles v. L’Engle, 58 Fla. 480, 51 South. Rep. 405. Whether the specific performance of a contract for the conveyance of real estate will be enforced by judicial procedure, is determined by the application of the established principles of equity designed for administering justice that are appropriate to the facts and circumstances of the particular case. L’Engle v. Overstreet, 61 Fla. 653, 55 South. Rep. 381.
It is the rule that the degree of proof required to establish the existence of a parol contract to convey lands in order to warrant enforcement of specific performance is greater than a mere preponderance of evidence. Dunn v. McGovern, 116 Iowa, 663, 88. N. W. Rep. 938; Dalzell v. Dueber Watch Case Manf’g Co., 149 U. S. 315, 13 Sup. St. Rep. 886; Sands v. Sands, 112 Ill. 225; Langston v. Bates, 84 Ill. 524. The evidence must be clear, full and free from suspicion. Harris v. Elliott, 45 W. Va. 245, 32 S. E. Rep. 176. See also Knight v. Knight, 51 W. Va.. 518, 41 S. E. Rep. 905; Purcell v. Miner, 4 Wall. (U. S.) 513, text 517; Beall v. Clark, 71 Ga. 818; Dewey v. Spring Valley Land Co., 98 Wis. 83, 73 N. W. Rep. 565; Rice v. Rigley, 7 Idaho, 115; Wilmer v. Farris, 40 Iowa, 309. In the latter case it was held that admissions of the defendant made in conversations with third persons, is insuffi
On the question of the character of possession, when possession is relied on as part performance to lift a parol contract for the conveyance of lands out of the statute, the Supreme Court of Kansas said it must be notorious, exclusive, continuous and in pursuance of the contract. Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. Rep. 568; Brown on Statute of Frauds, Sections 472-476; Roberts v. Templeton, 48 Ore. 65, 80 Pac. Rep. 481, 3 L. R. A. (N. S.) 790, note page 813.
In the case at bar it Avas not made to appear that Williams and Hardee took such possession that could be called distinct, exclusive or notorious. It does not appear that there Avas ever a change of possession from Mrs. Bailey to them.
Another very important consideration in this case Avas the undoubted relation of attorney and client that existed between Williams and Hardee and Mrs. Bailey. This relation had extended over a period of years and existed immediately prior, if not at the actual time of the making of the alleged contract. These gentlemen had represented her in all her litigations and claims against the estate of J. S. Bailey. It was the duty of counsel to advise, counsel and fully protect and advance her interests. This relation admits of so much influence and so much confidence and abuse of confidence, and of so great an opportunity for extortion, that transactions between attorney and client when the former seemingly profits at the expense of the latter, will, if not regarded as presumptively void, be examined Avith the closest scrutiny to the end that it may be determined Avhether the attorney has
The assignments of error are numerous. Because of the view we take of this case, it is unnecessary to discuss them in detail here. They have been urged with diligence and force by appellants counsel, and all of them have been examined and considered by this court. Those assignments which are based upon objections to questions propounded by defendants’ counsel upon cross-examination of the witnesses L. P. Hardee and J. A. Williams which sought to- elicit information as to the relations existing between them and Mrs. Bailey as attorneys and client; the manner and particulars of the discharge by them of the duties to Mrs. Bailey arising out of that relation; the acquisition by them of the subject-matter of their fee or the property affected by the litigation which they were conducting, or had conducted for her, and which figured in the transaction on which this suit was based; their knowledge of the character of the claims of the Bailey heirs to the two tracts of land and Mrs. Bailey’s interests or claims thereto as they were known to her attorneys; their dealings with the other heirs of Bailey in so far as their claims were inimical to the interests of Mrs. Bailey ; we think were relevant and material, and proper in cross-examination of those witnesses, and went directly to the good faith and fair dealing of the attorneys with their client which they were bound to make clear. That it was not matter of affirmative defense, but on the contrary essential to be shown by the complainants in order to' maintain their cause.
The one hundred and the one hundred and first assignments we think are not well taken. The evidence sought
The substance of the matter made the basis of the one hundred and seventeenth assignment, has been considered in the other assignments, and we think this assignment is not well taken.
Complainants moved to strike the testimony of Thomas W. Fielding as to conversations he had with Mrs. Bailey concerning the possession of the land, presumably her possession, as the testimony of Mr. Fielding related to that. The burden was upon Williams and Hardee to
This disposes of all the assignments of error except the last, which is directed against the decree. The Chancellor reviewing all the facts in the case decreed that the injunction should be dissolved and the cause dismissed. No error has been made to appear in this record. The decree was based largely on questions of fact. The principles of the law which he evidently applied to those facts we think are sound and were correctly applied. Every presumption is in favor of the ruling of the trial judge. Guerra v. Guiterrez, 66 Fla. 570, 64 South. Rep. 232; Mock v. Thompson, 58 Fla. 477, 50 South. Rep. 673.
The decree is affirmed.