86 Fla. 59 | Fla. | 1923
This is an appeal from an order sustaining a demurrer to a bill which sought to declare a trust in certain lands.
The facts alleged are that on February 9th, 1920, the E. O. Painter Fertilizer Company owned the land and agreed to sell it to Williams for the sum of twenty .thousand dollars on the following terms: Williams to assume a ten thousand dollar mortgage in favor of Mrs. Heathcote,.
On February 13th, 1920, B. C. Neeld and George M. Gordon, as co-partners, exhibited their bill in chancery against the Painter Company for specific performance of a contract for the sale of the same land, Williams was made defendant. The bill alleged on information and belief that the Painter Company had agreed to sell the land to Williams and prayed for an injunction against the ■consummation of the sale.
On May 21st, 1920, the Chancellor sustained a demurrer to the bill and Neeld and Gordon appealed making the •appeal returnable on August 16th, 1920.
On August 2nd, 1920, .Neeld and Gordon obtained a ■deed of conveyance from the Painter Company for the land which consisted of four lots in the City of St. Peters-burg. On the same day Neeld and Gordon and their wives ■conveyed the land to the Neeld-Gordon Company, a corporation, which obtained its charter on January 2nd, 1920. The stockholders were Neeld and his wife, Gordon' and his wife and A. T. Blocker. Neeld was.president, Blocker was vice-president and Gordon' secretary and treasurer.
The prayer is that the Neeld-Gordon Company will be •decreed to hold the title of the property in trust for the ■complainant and require it to execute a deed of conveyance to him in compliance with the terms of “his purchase of said lots” from the Painter Company.
The Neeld-Gordon Company had notice when it obtained ■the deed of conveyance from Neeld and Gordon of the -transaction between Williams and the Painter Company, .so had Neeld and Gordon knowledge of the transaction when they obtained a conveyance from the Painter 'Company.
These parties knew that Williams had failed to comply with the terms of his agreement with the Painter Company. That five months and twenty-three days had •elapsed since the Painter Company had complied with the agreement on its part to be performed, yet Williams had -failed to comply with the agreement on his part. He had paid five hundred dollars when the deed was placed in •escrow, but his agreement was to pay five thousand dollars
It cannot be said that .he acted with diligence. He was. in no position all of that time to maintain against the Painter Company a bill for specific performance because-it is not shown that he tendered to the Company the cash payment required and the note and mortgage. Being ready, willing and able to do so was not a - compliance-with his agreement in the absence of any showing that the-Painter Company had refused or failed to comply with the-agreement on its part. The deposit of the deed in escrow upon the terms stated in the bill was a; full compliance-with the agreement by the Painter Company. If the complainant was ready, willing and able four days thereafter to comply with his part of the agreement no reason appears why he did not actually do so, unless he was excused from such compliance by the act of Neeld and Gordon in-bringing the bill for specific performance against the-Painter Company and Williams. But that was no act of' the Painter Company, and the complainant in this case,. Williams, need not have been deterred thereby from compliance with his agreement.
Specific performance cannot be demanded of right. It-is granted of grace and rests in discretion. See Knox v. Spratt, 23 Fla. 64, 6 South. Rep. 924; McCrillis v. Copp, 31 Fla. 100, 12 South. Rep. 643; Asia v. Hiser, 38 Fla. 71, 20 South. Rep. 796; Williams v. Bailey, 69 Fla. 225, 67 South. Rep. 877; Ann. Cas. 1917-D 230 n; Dixie Naval Stores Co. v. German American Lumber Co., 76 Fla. 339, 79 South. Rep. 836.
The discretion to be exercised is not an arbitrary discretion -but should be sound legally. When a contract is in-writing, is. certain, fair in all its parts, not in contravention of law or public policy and is capable of being per
Now, if Williams could have maintained against the Painter Company a bill for specific performance on August 2nd, 1920, by tendering to the Company the first cash payment and note and mortgage then Neeld and Gordon would have taken the land subject to his equities because they had “full” knowledge of his rights, if it was intended by that word to convey the idea of actual knowl'■edge on their part. We so interpret it in connection’with •other allegations of the bill.
Neeld and Gordon were therefore not innocent purchasers if that equity existed. Time was not of the essence ■of the agreement between the Painter Company and Williams, and the former had not notified Williams orally nor in writing of its intention to rescind bécause of Williams’ failure to comply with the terms of the agreement on his part to be performed.
Not availing itself of the right to rescind the agreement, which Williams’ delay in performing might have given to it, the Company could not retain the five hundred dollars it had received and cancel the agreement without notice; treat it as if it had no existence. The theory upon which ■equity enforces a contract for the sale of land is that the vendor is deemed to be the holder of the legal title for the benefit of his vendee and equity deems that to have been done which should have been done.
The ease of Ward et al. v. Spivey, 18 Fla. 847, cited by solicitors for appellant in their brief, is controlling.
There does not appear to have been such wilful and intentional delay on Williams’ part as evinced an intention ■to treat the contract as at an end, nor that the delay had caused such damages as would have rendered a decree of specific performance inequitable. See 6 R. C. L. 928.
The demurrer should have been overruled. The decree is reversed with directions to reinstate the bill and allow the defendant a reasonable time within which to answer or plead.
