MAURICE JACOBS AND HERMAN J. BLOOM
v.
SAMUEL BERLIN AND GERTRUDE BERLIN
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The court held that the contract for the sale of premises, part of which constituted the defendant's homestead, was unenforceable as to the homestead portion and, due to indivisibility, the entire contract was unenforceable.
Plaintiffs sought specific performance of a contract to convey land. The trial court dismissed the bill of complaint after testimony established that …
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Appeal brings for review decree dismissing bill of complaint after testimony taken on certain issues. This was done after the going down of onr mandate in Berlin v. Jacobs and Bloom, 156 Fla. 773, 24 So. (2nd) 717, which disposed of the questions presented on the first appeal in this case.
The issue on which testimony was taken was whether or not the premises involved constituted the homestead of the defendants in the Court below.
*260The master and the chancellor. found in favor of the der fendants on this issue and thereupon the chancellor entered his decree dismissing the bill.
We must bear in mind that this is a suit for specific performance and that our opinion, supra, establishes the law of the case under the pleadings and proof as they stood at that time.
The matter- of decreeing specific performance of a contract to convey land is one in which the court may exercise its sound judicial discretion and the enforcement is not a matter of course like the right to enforce a lien or judgment. See McCaskill Co. v. Dekle, 88 Fla. 285, 102 So. 252.
• We find that beyond question a part of the premises involved constitutes' the homestead'of-the'defendant Sahiuel Berlin and that as to such part the' alleged contract of "option involved here cannot be enforced, aside or in addition1 to the reasons for its ' noh-enforcibility 'pointed' out' in our opinion, supra'.11’ -1''1- '1- ’ > - - •
If plaintiffs''7were'‘claiming under á; judgment! lien thpir rights might be entirely different. In such case the judgment lien might be applicable to that' part of the property which might be shown to' be non-homestéad, but it is,'.riot necessary ..for us to determine the answer to that question here. ., ; : ■. i->-
Inasmuch as the contract may not be enforced as to a part of the property which is shown to be not readily divisible from the remainder of the property, the chancellor exercised sound judicial discretion in dismissing the bill of complaint and his action should be affirmed.
So ordered.
CHAPMAN, C. J., TERRELL, BUFORD and ADAMS, JJ., concur.
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Frieda Zimmerman v. Diedrich, 97 So. 2d 120 (Fla. 1957)…Hotel Martinique, Inc., supra, the court held that a contract for sale of homestead property could be specifically enforced if executed by the husband and wife in the presence of two witnesses. The court referred to the opinion in Jacobs v. Berlin, 158 Fla. 259, 28 So. 2d 539, in which it was written that part of the premises involved constituted a homestead and there could be no specific performance to convey that part, and inasmuch as the part that was homestead could not be isolated, the bill for specif…
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Nell Jordan v. Boisvert, 632 So. 2d 254 (Fla. 1st DCA 1994)…7, 180 (Fla. 1st DCA 1969). 23 Am.Jur.2d 269, Deeds, § 226. The decision whether to decree specific performance of a contract to convey real property is a matter of judicial discretion; enforcement is not a matter of course. Jacobs et al. v. Berlin, 158 Fla. 259, 28 So. 2d 539, 540 (1946). See also Rybovich Boat Works, Inc. v. Atkins, 585 So. 2d 270, 272 (Fla.1991) (“[T]he remedy of specific performance is not a matter of right.”) In Bajrangi v. Magnethel Enterprises, Inc., 589 So. 2d 416 (Fla. 5th DCA 199…
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Robinson v. Univ. OF Miami, 100 So. 2d 442 (Fla. 3d DCA 1958)…of the chancellor in refusing specific performance of such a contract will not be disturbed on appeal unless clearly erroneous. Todd v. Hyzer, 154 Fla. 702, 18 So. 2d 888; Howard Cole & Co. v. Williams, 157 Fla. 851, 27 So. 2d 352; Jacobs v. Berlin, 158 Fla. 259, 28 So. 2d 539; Topper v. Alcazar Operating Co., 160 Fla. 421, 35 So. 2d 392. The record does not show that the court abused its discretion in denying specific performance under the circumstances of this case. Having held that the action taken by t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The R. E. L. McCaskill Co. v. Dekle, 88 Fla. 285 (Fla. 1924)
- Berlin v. Jacobs, 156 Fla. 773 (Fla. 1945)