RUTH E. PICKARD AND NEWCOMB BARRS, AS ADMINISTRATOR DE BONIS NON OF THE ESTATE OF GRAHAM E. PICKARD, DECEASED, APPELLANTS,
v.
CALVIN BRINKLEY AND CAROLINE BRINKLEY, APPELLEES
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The Florida Supreme Court reversed an order striking a portion of the defendant's amended answer in a vendor's lien enforcement case. The court held that the defendant's allegation that the vendor had taken possession of the property without consent or notice was not wholly irrelevant and could bear upon the equities of the case, thus warranting consideration rather than being stricken.
The court held that the stricken portion of the amended answer is not wholly irrelevant and can have real bearing upon the equities of the case, therefore the order striking it should be reversed.
“This suit was brought to enforce a vendor's lien upon real estate put into the possession of the vendee upon a contract of sale with an express promise by the vendee to pay the full purchase price.”
Establishes the nature of the suit and the underlying transaction.
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Whitfield, P. J.
This suit was brought to enforce a vendor’s lien upon real estate put into the possession of the vendee upon a contract of sale with an express promise by the vendee to pay the full purchase price.
A portion of the amended answer of the administrator de bonis non of the vendee avers, that the complainant vendor had taken and retains possession of the property without the consent of or notice to the defendant and therefore the complainant should be estopped from enforcing a vendor’s lien on the property if there is such a lien. This portion of the amended answer was stricken and the defendant appealed.
Unlike the case of Aycock Bros. Lumber Co. v. First Natl. Bank of Dothan, 54 Fla. 604, 45 South. Rep. 501, the contract of sale in this case contains the following:
“In case of failure to the said party of the second part’ to make either of the payments or any part thereof, or to perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and terminated, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and liquidation of all damages by them sustained, and said parties of the first part shall have the right to re-enter and take possession of the premises aforesaid without being liable to any action therefor.”
It does not appear that the stricken portion of the amended answer is wholly irrelevant and can have no real bearing upon the equities of the case, therefore the order appealed from is reversed.
West and Terrell, J. J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
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Citator
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Barnett Nat. Bank of Jacksonville v. Murrey, 49 So. 2d 535 (Fla. 1950)…ied. Southern Ferro Concete Co. v. Federal Terra Cotta Co., 79 Fla. 376, 84 So. 171; Campbell v. A.L. Wilson Co., 74 Fla. 608, 77 So. 540; Hollingsworth v. Black, 78 Fla. 125, 82 So. 848; Busch v. Baker, 79 Fla. 113, 83 So. 704; Pickard v. Brinkley, 89 Fla. 116, 103 So. 417; Boone v. Gay, 89 Fla. 347, 104 So. 585; Holgate v. Jones, 94 Fla. 198, 113 So. 714. It is our conclusion that the order of the trial court should be quashed and that the stricken portions of the answer should be reinstated, but withou…
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Hollingsworth v. Arcadia Citrus Growers Ass'n, 122 Fla. 90 (Fla. 1934)…ts averred would be established it cannot be said that the matter stricken served no purpose and had no bearing upon the merits of the controversy, and was wholly insufficient and had no bearing on the equities of the case. See: Pickard v. Brinkley, 89 Fla. 116, 103 So. 417; Holgate v. Jones, 94 Fla. 198, 113 So. 714; Busch v. Baker, 79 Fla. 113, 83 So. 704. The method adopted by those following a certain school of practice requires a lengthy and detailed account of the transactions constituting the evide…
Authorities Cited
- Aycock Bros. Lumber Co. v. First Nat'l Bank of Dothan, 54 Fla. 604 (Fla. 1907)