CITY OF WEST PALM BEACH, A MUNICIPAL CORPORATION APPELLANT,
v.
LAKESIDE CEMETERY ASSOCIATION, A CORPORATION, APPELLEE
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The Florida Supreme Court affirmed a lower court's overruling of a demurrer based on laches in a specific performance action. A cemetery association sought to compel conveyance of land from the City of West Palm Beach despite a ten-year delay in tendering the remaining purchase price, and the court held that such delay alone does not bar specific performance when the vendee is in possession with the vendor's consent.
The court held that mere delay in payment does not prevent a vendee in possession from compelling specific performance, unless the vendor places a limit on the time by making a demand for payment with notice that the agreement will be rescinded if the demand is not met and the vendee defaults. Any inequitable conditions arising from the delay constitute a defensive matter for the vendor to raise by plea or answer.
“if the vendee takes and retains possession of the premises with the vendor's consent, his mere delay in bringing the suit or paying the purchase price will not prevent him from compelling a conveyance upon a subsequent payment or tender of the amount due”
Establishes the core rule that possession plus consent negates laches as a bar to specific performance
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Join FLexlaw to unlock all legal intelligenceIn 1902, the City of West Palm Beach placed the Cemetery Association in possession of land under a contract of sale, with the association having paid …
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Cockrell, J.
Upon the payment of one-half the purchase price, the Cemetery Association was in 1902 lei. into possession of a tract of land by the city, under a contract of sale, whereby the city reserved the option to forfeit the contract or to re-enter upon the failure of the association to make future payments, or to pay taxes; assessments or impositions legally imposed upon the land. Although under the contract the balance of the purchase money was to be paid one year thereafter with six per cent, interest from date, the offer to pay with demand for the deed, was not made until ten years thereafter. To the bill for specific performance of the contract, a demurrer upon the ground of laches was interposed and overruled.
It is admitted that under the decision of this court in Forssell v. Carter, 65 Fla. 512, 62 South. Rep. 926, time was not of the essence of the contract. With this admission, the rule announced in Tate v. Pensacola, Gulf Land & Development Co., 37 Fla. 439, 20 South. Rep. 542, controls this case. We there said that if the vendee takes and retains possession of the premises with the vendor’s consent, his mere delay in bringing the suit or paying the purchase price will not prevent him from compelling a conveyance upon a subsequent payment or tender of the amount due, nor will his right to such relief be cut off until the vendor places a limit to the lapse of time by a demand for payment at or before a specified day and by a notice that the agreement will be rescinded unless the demand is complied with and the vendee makes default thereon.
If conditions have arisen making the performance of the contract inequitable by reason of the delay, this would be defensive matter to be set up by plea or answer. The order is affirmed.
Shackleford, C. J., and Taylor, Hocker and Whitfield, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DeHuy v. Osborne, 96 Fla. 435 (Fla. 1928)…as correctly applied, for it is also the rule that when a vendee is in possession, and time is not of the essence of the contract, mere delay in bringing suit will not bar relief by specific performance. West Palm Beach v. Lake Side Cemetery Ass’n., 67 Fla. 176, 64 So. R. 751; Pomeroy’s Spec. Perf. (3rd Ed.) 375. In the Tate case, the vendee was placed immediately in possession by his vendor and permanently retained possession until he brought his suit, all along exercising all rights of equitable ownershi…
Authorities Cited
- Tate v. Pensacola, 37 Fla. 439 (Fla. 1896)
- Forssell v. Carter, 65 Fla. 512 (Fla. 1913)