E. A. DEMPS, PLAINTIFF IN ERROR,
v.
J. C. HOGAN, DEFENDANT IN ERROR
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In this ejectment action, the Florida Supreme Court reversed a lower court judgment awarding possession to the legal title holder, holding that where an owner verbally contracts to sell land and puts the buyer in possession, the owner cannot use ejectment to recover possession unless the buyer breaches the contract. The decision protects equity interests in land sales despite the statute of frauds.
The court held that the legal title holder cannot prevail in ejectment because he has no present right of possession. Where an owner verbally contracts to sell land and puts the vendee in possession, the owner cannot oust the vendee by ejectment unless the vendee breaches the purchase contract in a way that forfeits his possession rights.
“It is well settled that a plaintiff in ejectment to be entitled to recover must show in himself a present right of possession.”
Establishes the foundational requirement for ejectment actions that the plaintiff must possess a present right to the property.
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Join FLexlaw to unlock all legal intelligenceHogan held legal title to a tract of land in Suwannee County. He verbally authorized his agent Brown to sell the land to Demps and put him in possessi…
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Taylor, J.
The defendant in error as plaintiff below sued the plaintiff in error as defendant below in the Circuit Court of Suwannee County in an action of ejectment for the recovery of possession of a tract of land there situated. The cause was refened to a referee for trial, who upon the trial rendered judgment in favor of the plaintiff below, and such judgment the defendant below brings here for review by writ of error. Motion for new trial was made and denied and such ruling drily excepted to, and the denial of such motion is assigned as error. Such motion was made upon the grounds among others:
(1) Because the finding's of the referee are contrary to law; (2) and because said findings are contrary to the evidence, and are not supported by the evidence. The referee erred in the denial of this motion, and under the facts and proof erred in not rendering judgment in favor of the defendant below.'
From the proofs it appears that Hogan, the plaintiff being the holder of the legal title to the land in dispute verbally empowered one Brown as his agent to sell the land to the defendant and to put the defendant in possession thereof.
Brown as such agent, with the full knowledge and consent of the plaintiff, sold the land to the defendant and put him in possession thereof, the defendant paying to the plaintiff a considerable portion of the purchase price. There is not a scintilla of proof that the defendant made any default in the terms of his contract of purchase, or in any manner forfeited his right to the possession of the land under his contract of 'purchase. Under these circumstances the plaintiff had no right in law to a recovery of the possession of such land.
It is well settled that a plaintiff in ejectment to be entitled to recover must show in himself a present right of possession. Barco v. Fennell, 24 Fla. 378, 5 South. Rep. 9; Jones v. Lofton, 16 Fla. 189; Rose v. Withers, 39 Fla. 460, 22 South. Rep. 724; Norris v. Billingsley, 48 Fla. 102, 37 South. Rep. 564.
Where the owner of land by himself or through his. agent makes a verbal contract of sale of such land to another for an agreed price and puts the vendee in possession, upon compliance with the terms of his contract of purchase a court of equity will in favor of such purchaser enforce specific performance of such contract notwithstanding the statute of frauds requiring all contracts for the sale of lands or some memorandum thereof to be in writing and signed by the vendor. Brown on Statute of Frauds (5th Ed.) Secs. 465 and 467 and numerous authorities there cited; and in such a case until there is a breach by the purchaser of his contract of purchase, that amounts to a-forfeiture of his right to the possession, the vendor cannot oust him by ejectment. Norris v. Billingsley, supra.
The judgment of the court below in said cause is hereby reversed at the cost of the defendant in error. All concur, except Parichill, J., absent oh account of illness.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Johnson v. Wilhelmina Reynolds, 97 Fla. 591 (Fla. 1929)…ent the plaintiff must recover if at all upon the strength of his own title and not upon the weakness of that of the defendant. Ropes v. Minshew, 51 Fla. 299, 41 So. R. 538; The Skinner Mfg. Co. v. Wright, 56 Fla. 561, 47 So. R. 931; Demps v. Hogan, 57 Fla. 60, 48 So. R. 998. The presumption obtains that the verdict and judgment were correct in so far as there was sufficient evidence to support the former, and if all the evidence which was adduced at the trial is not produced before this Court in a bill…
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Williams v. Guthrie, 102 Fla. 1047 (Fla. 1931)…in ejectment must recover on the strength of his own title and not on the weakness of his adversary’s. Skinner Mfg. [*1052] Co. vs. Wright, 56 Fla. 561, 47 So. 931. A present right of •possession is necessary to recover in ejectment. Demps v. Hogan, 57 Fla. 60, 48 Sou. 998; Rose v. Withers, 39 Fla. 460, 22 So. 724; Barco v. Fennell, 24 Fla. 378, 5 So. 9. The plaintiff cannot recover even against one without title unless he shows title or prior possession, coupled with a present right of possession. Florid…
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Cottages v. Wegman, 57 So.2d 439 (Fla. 1951)…he payment of some part or all of the consideration is such part performance as will take an oral contract out of the Statute of Frauds. Pedrick v. Vidal, 95 Fla. 952, 116 So. 857; Clark & Lewis v. Gardner, 91 Fla. 1059, 109 So. 192; Demps v. Hogan, 57 Fla. 60, 48 So. 998. Hence, the latter of the two aforementioned rules is applicable in this State. However, if this case were controlled by the first mentioned general rule, we are of the view that the services rendered the father by his daughter are not…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barco v. A. M. Fennell and Wife, 24 Fla. 378 (Fla. 1888)
- Jones v. Lofton, 16 Fla. 189 (Fla. 1877)
- Norris v. Fellows H. Billingsley and John P. Billingsley, 48 Fla. 102 (Fla. 1904)
- Rose v. J. B. Withers upon the Estate of E. J. Baker, 39 Fla. 460 (Fla. 1897)