C. M. HILLIARD, PLAINTIFF IN ERROR,
v.
D. J. FUTCH, N. E. BROWN, R. O. FERGUSON, ANNIE F. CALDWELL, BY HER HUSBAND, ALBERT CALDWELL, T. P. JORDAN, F. H. YOUNG, GEORGE L. COLBURN AND LEO J. GELBERG, DEFENDANTS IN ERROR
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Hilliard, a proposed vendor in a real estate purchase contract, refused to return a $1,600 deposit paid by Futch and others when the property's title contained material defects that could only be cured through litigation. The Florida Supreme Court affirmed the lower court's judgment, holding that under the contract's terms, the deposit must be returned when the vendor cannot furnish good title.
The vendor must return the deposit to the purchaser. Under the contract's express terms, if the owner cannot furnish good title to the property, the deposit shall be returned to the purchaser. When the vendor's title contains material defects that require litigation to cure, the vendor cannot comply with the obligation to furnish good title within a reasonable time.
“If the present owner does not approve of this contract, or if he cannot furnish good title to the above property, or for any reason same can not be delivered, this deposit shall be returned to the purchaser.”
The contract provision that forms the basis of the court's holding requiring return of the deposit when the vendor cannot furnish good title.
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Join FLexlaw to unlock all legal intelligenceHilliard contracted to sell real property to Futch and others, who paid a $1,600 deposit. The contract required Hilliard to provide an abstract showin…
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Buford, J.
In this case there was a contract for purchase and sale of real estate; Hilliard being the proposed vendor and Futch et al., the proposed vendees. Futch paid $1600.00 to Hilliard. The contract contained the two following pertinent clauses:
“It is hereby especially understood and agreed that the present owner shall furnish abstract of the above described property brought down to date, showing title to be good or made good within a reasonable time, also all necessary papers conveying said property to the purchaser, said papers to be exchanged and monies to be paid at the office of Brown Realty & Abstract Company, of Lake City, Florida. In the event' the purchaser shall fail to comply with his part of this agreement this deposit shall be forfeited as liquidated and stipulated damages'. If the present owner does not approve of this contract, or if he cannot furnish good title to the above property, or for any reason same can not be delivered, this deposit shall be returned to the purchaser. ’ ’
An abstract was delivered in due course which showed certain material defects in title, as it was alleged. The defects were pointed out' by letter of opinion of attorney.
It appeared that the defects in title could only be cured by proper litigation prosecuted to conclusion to remove clouds from title. Hilliard filed suit, making numerous parties defendant, for the purpose of obtaining a decree adjudicating the title of the property to be vested in him without cloud. Upon ascertaining that for Hilliard to be in position to convey the property showing a clear record title it would be required that he institute and prosecute to successful termination a suit for that purpose, Futch demanded return of the money paid under the contract. This was declined and suit was filed. A suit under like circumstances was filed and prosecuted in the case of Reese v. Levin, opinion filed September 11,1929, reported 123 So. R. 809. The chief difference was that that was a suit in chancery, while this is a suit at law. ' The rules of law, however, enunciated in the case of Reese v. Levin, supra,, are applicable to. the case at bar in so far as the right of recovery under such circumstances is concerned.
The question of the remedy to be invoked was discussed in the opinion in the case of Leesburg State Bank, as Trustee, et al.,. v. Lyle, opinion filed at this term of the Court, and the rule enunciated in that opinion as to the availability of the remedy here invoked applies. See also Cox v. Grose, 122 So. R. 513.
For the reasons stated the judgment should be affirmed and it is so ordered.
Affirmed.
Whitfield, P. J., and Strum, J., concur. Ellis and Brown, J. J., concur in the opinion and judgment.
Terrell, C. J., not participating.
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Perkins v. Simmons, 153 Fla. 595 (Fla. 1943)…ion and when advised of the above shortage, he immediately rescinded and cancelled the verbal agreement under which he paid the $1,000.00. The right of the plaintiff below to maintain this common law action was not challenged. See Hilliard v. Futch, 99 Fla. 654, 127 So. 341; Cox v. Grose, 97 Fla. 848, 122 So. 513. The case of Phifer v. Steenburg, 65 Fla. 555, 64 So. 265, involved a contract of purchase of land which stated the quantity to be 3500 acres, more or less. The seller could not convey the 3500 a…
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Bd. of Pub. Instruction of Palm Beach Cnty. v. Jackson B. McDonald, 143 Fla. 377 (Fla. 1940)…within which to perform, but that he had exceeded a reasonable length of time and they were justified in rescinding the contract. To support this contention appellants rely on Reese v. Levin, 98 Fla. 397, 123 So. 809; and Hilliard v. Futch, et al., 99 Fla. 654, 127 So. 341. In both of these cases there was a contract of purchase and sale, in which vendor had a reasonable time after date of the contract to make the title good. In both cases, after the abstract was presented, attorney for vendee pointed out…