SOUTH FLORIDA FARMS COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
C. A. HALL, DEFENDANT IN ERROR
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A vendor brought an ejectment action against a vendee in possession under an executory contract to purchase real property. The Florida Supreme Court affirmed judgment for the defendant, holding that ejectment cannot be maintained by a vendor against a vendee in possession under an executory contract unless the vendee is in default and proper notice of rescission has been given.
An action of ejectment may not be successfully maintained by a vendor against a vendee in possession under an executory contract to purchase unless the vendee is in default. Even upon default, ejectment may succeed only after the vendor provides notice of rescission and allows a reasonable time for the vendee to perform.
“the rule generally, and with which this court is in accord, is that an action of ejectipn may not be successfully maintained at the instance of a vendor against his vendee who is in possession under an executory contract to purchase and who is not in default”
Establishes the fundamental rule that vendors cannot eject vendees in possession under executory contracts absent default.
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Join FLexlaw to unlock all legal intelligenceSouth Florida Farms Company owned premises that C.A. Hall occupied under an executory contract to purchase. The plaintiff sought to prove a material b…
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West, J.
This is an action of ejectment. The declaration is in the statutory form. The plea is not guilty. Verdict and judgment were for defendant. Plaintiff took writ of error and assigns as errors the court’s order overruling its motion for a new trial and entering judgment in favor of defendant.
Plaintiff, so far as this record discloses, is owner of the premises. Defendant is in possession under an executory contract to .purchase same from the plaintiff. Upon the trial plaintiff sought to prove that there had been such a breach of the contract to purchase by defendant as to entitle it to rescind the contract and demand possession of the premises.
The rule generally, and with which this court is in accord, is that an action of ejectipn may not be successfully maintained at the instance of a vendor against his vendee who is in possession under an executory contract to purchase and who is not in default. And even when the vendee is in default the rule in this and other jurisdictions is that such action may be successfully maintained only after notice of recission by the vendor, allowing a reasonable time to vendee for performance. Warvelle on Ejectment, Section 146; 9 R. C. L. 863; Felt v. Morse, 80 Fla. 154, 85 South. Rep, 656; Norris v. Billingsley, 48 Fla. 102, 37 South. Rep. 564; Chabot v Winter Park Co., 34 Fla. 258, 15 South. Rep. 756; Tally v. Kingfisher Imp. Co., 24 Okla. 472, 103 Pac. Rep. 591, 20 Ann. Cas. 352; Brixen v Jorgensen, 28 Utah, 290, 78 Pac. Rep. 674., 107 Am. St. Rep. 720 and note. No such default by defendant is shown in this case as to require consideration of its provision making time of the essence of the contract. A recital of the evidence at this stage of the controversy would be of no profit. It does not require a judgment for plaintiff.
Affirmed;
Browne, C. J., and Taylor, Whitfield, and Ellis, J. J., concur.
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Citator
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Consol. Land Co. v. Tyler, 88 Fla. 14 (Fla. 1924)…nsas City Southern R. Co. 261 U. S. 481, 67 L. Ed. 758, 43 Sup. Ct. Rep. 440; Willis v. Special Road [*19] and Bridge Dist. No. 2, Osceola County, 73 Fla. 446, 74 South. Rep. 495; Paul Bros. v. Long Branch Special Road and Bridge Dist., 83 Fla. 706, 93 South. Rep. 687. In this ease the Legislature by statute created a taxation district consisting of a portion of St. Lucie County for the purpose of raising funds to protect a bond issue to erect a bridge across the Indian River, which river extends north and south…
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Henry v. Ecker, 415 So. 2d 137 (Fla. 5th DCA 1982)…time as the vendor gives notice of rescission because of the default and allows the vendee a reasonable time to perform obligations under the contract. Wismer v. Alyea, 103 Fla. 1102, 138 So. 763 (1932); South Florida Farm Co. v. Hall, 84 Fla. 233, 93 So. 687 (1922). A contract of purchase and sale, being preliminary to the sale and not the sale itself and also subject to rescission by agreement between the parties, is an execu-tory contract, the two promises of which are mutually dependent and conditio…
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Latin-American Bank v. S. H. Rogers in Bankruptcy of the Estate of J. W. Teasley, 87 Fla. 147 (Fla. 1924)…gal title is in the vendor. That this is true in this jurisdiction is outside the realm of controversy, since the vendor’s right to maintain ejectment against a vendee in default has in several cases been recognized. South Florida Farms Co. v. Hall, 84 Fla. 233, 93 South. Rep. 687; Norris v. Billingsley, 48 Fla. 102, 37 South. Rep. 564; Chabot v. Winter Park Co., 34 Fla. 258, 15 South. Rep. 756. The Florida cases relied, on do not militate against the view that the interest of the vendor is an executory co…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cilabot v. The Winter Park Co., 34 Fla. 258 (Fla. 1894)
- Felt v. Morse, 80 Fla. 154 (Fla. 1920)
- Norris v. Fellows H. Billingsley and John P. Billingsley, 48 Fla. 102 (Fla. 1904)