FREDERICK A. RESNICK, APPELLANT,
v.
SANDER J. GOLDMAN, APPELLEE
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A title is unmarketable when the terms of a trust agreement, which grant the trustee power of sale, are not revealed or recorded, creating uncertainty for the purchaser.
Resnick agreed to sell real estate to Goldman. Goldman discovered Resnick had conveyed the property to a trustee. The trustee tendered a deed, but Gol…
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This is an appeal from a final decree which rescinded a contract for sale of real estate, returned the down payment to the purchaser and awarded him certain damages for expenses incurred. The parties had entered into a written contract by which the appellant Resnick agreed to sell to the appellee Goldman certain real estate for the sum of $26,000. There was a down payment of $5,000.
The purchaser’s examination of the title revealed that the seller Resnick no longer *771held title, haying previously conveyed the property to Central Bank and Trust Company of Miami, Florida, “as Trustee under the provisions of a certain Trust Agreement, dated the 15th day of August, 1957, and known as Trust No. 57-149.” That deed contained recitals which purported to give the trustee full power of sale without need for the consent or joinder of the beneficiaries under the trust agreement to which it referred. But the terms of that separate trust agreement were not revealed on the deed, and the trust agreement was not recorded.
The seller tendered a deed from the trustee. Contending title was unmarketable, the purchaser refused it, and filed this suit which resulted in the decree appealed.
Appellant argues (1) that there was no equity jurisdiction, (2) that the title was marketable, and (3) that it was error to award the damages. As to the first contention, the nature of the relief granted shows that equity jurisdiction was properly invoked. Equity takes cognizance of suits for rescission of executory contracts to convey,1 and a claim by a purchaser for return of a down payment under such a contract is properly brought in equity where to aid recovery a lien may be claimed and imposed on the property involved.2
The chancellor correctly recognized that the bank held the property in trust, and not in fee simple under § 689.07, Fla.Stat., F.S.A. There were statements in the deed of the “nature and purposes of the trust” which took it out of the statute. The difficulty resulted from the fact that the trust, terms recited in the deed could not be relied upon, because of the possibility of conflict with the terms of the particular trust agreement also referred to in the deed but otherwise undisclosed. Therefore the chancellor correctly held that the purchaser was entitled to regard the title as unmarketable and was excused from performance.
Where the terms of-a trust agreement so authorize and provide expressly or impliedly, a trustee may sell trust property without the need of joinder or assent of the cestui que trust.3 In the instant case, although the title was conveyed to the bank as trustee under the provisions of a described trust agreement, the trust agreement was not recorded and its provisions were not produced for the inspection of the purchaser. Thus, when a deed from the trustee was tendered, the purchaser, being unadvised as to the terms of the trust agreement, had no way of knowing whether, according to the provisions thereof, the deed from the trustee would be valid or invalid. In those circumstances the uncertainty as to the terms of the trust determined the un-marketability of the title. Ware v. Busch, 108 Fla. 153, 146 So. 197, 198; Adams v. Whittle, 101 Fla. 705, 135 So. 152, 155. See Patton on Land Titles (2d Ed. 1957), § 417; 33 Fla.Jur., Vendor & Purchaser, §§ 62, 70-71.
The damages allowed were proper under the proposition that for such breach of contract the purchaser is entitled to recover the purchase money he has paid, together with interest and expenses of investigating title. Key v. Alexander, 91 Fla. *772975, 108 So. 883; Gassner v. Lockett, Fla. 1958, 101 So.2d 33.
We have given consideration to the ap-pellee’s cross-assignments of error and find them to be without merit.
Affirmed.
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Grammer v. Roman, 174 So. 2d 443 (Fla. 2d DCA 1965)…it is remedial and applies to all deeds, prior and subsequent to its passage, which come within its provisions. It fits the deed we consider here like a glove. We are aware of appellant’s reliance on the case of Resniclc v. Goldman, Fla.App. 1961, 133 So. 2d 770, but find in view of the passage of the remedial statute since that decision was made and the fact that it was made upon different considerations that it is not applicable to this situation. Resnick held that a purchaser has a right to consider titl…
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Horton v. O'Rourke, 321 So. 2d 612 (Fla. 2d DCA 1975)…958), 101 So. 2d 33; Liberis v. Carmeris (1933), 107 Fla. 352, 146 So. 220; Key v. Alexander (1926), 91 Fla. 975, 108 So. 883; Southern Realty and Utilities Corp. v. Gettleman (Fla.App.3d, 1967), 197 So. 2d 30; Resnick v. Goldman (Fla.App.3d, 1961), 133 So. 2d 770 ; 33 Fla. Jur. Vendor and Purchaser § 173 (1960). . 77 Am.Jur.2d Vendor and Purchaser § 522 (1975) ; 5 A. Corbin Contracts § 1097 (1964). . 2 W.B1.1078 (1776). . (1938), 132 Fla. 602, 182 So. 216.…
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Sparks v. The Charles Wayne Grp., 568 So. 2d 512 (Fla. 5th DCA 1990)…d in the contract for the amount of the initial payment made thereunder,.... Id., 141 So. at 885. More modern Florida cases recognize a non-defaulting vendee’s lien against the subject property, for the purchase monies paid. In Resnick v. Goldman, 133 So. 2d 770 (Fla. 3d DCA 1961), the buyer rescinded the contract and sought to recover his deposits. The court upheld his vendee’s lien against the property. Equity takes cognizance of suits for rescission of executory contracts to convey and a claim by a purc…
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
- Key v. Alexander, 91 Fla. 975 (Fla. 1926)
- Adams v. Whittle, 101 Fla. 705 (Fla. 1931)
- Meredyth Violet Gassner v. Lockett, 101 So. 2d 33 (Fla. 1958)
- O'Steen v. Thomas, 146 Fla. 73 (Fla. 1941)
- Johnson v. Green, 54 So. 2d 44 (Fla. 1951)
- Jordan v. Cary D. Landis, 128 Fla. 604 (Fla. 1937)
- Reese v. Asher Levin, 124 Fla. 96 (Fla. 1936)
- Ware v. Busch, 108 Fla. 153 (Fla. 1933)
- Perkins v. Stoutamire, 108 Fla. 490 (Fla. 1933)