SHERMAN STEPHAN, APPELLANT,
v.
ANNA H. BROWN, EXECUTRIX OF THE ESTATE OF ANNA PEARL KOSTRO, APPELLEE
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A purchaser of estate property sought rescission of the sale and return of funds after discovering alleged encumbrances, claiming the seller (Executrix) had warranted the property free and clear. The court affirmed the dismissal, holding that the deed controlled over the contract and contained no warranties, and that personal representatives cannot give warranties of title when conveying estate property.
The court held that the Executrix's Deed controlled over the contract, that the absence of a warranty in the deed meant the Executrix had no duty regarding warranties against encumbrances after the deed was accepted, and that personal representatives lack power to give warranties of title when conveying estate property.
[1] A contract for the sale of real property merges with the deed, and the deed controls warranties of sale upon acceptance by the purchaser.
[2] Absent a warranty against encumbrances in a deed, a seller has no duty to the buyer regarding such encumbrances after the deed is accepted.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the contract for sale of the property became merged with the Executrix's Deed, that the latter controlled with respect to warranties of sale, and that absent such warranty in the deed the Executrix was under no duty or obligation with respect to any warranty against encumbrances on the property after the deed had been accepted by the purchaser”
Establishes the controlling principle that the deed's terms override the contract when merged, and that no warranty exists absent explicit inclusion in the deed
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Join FLexlaw to unlock all legal intelligenceSherman Stephan entered into a written contract with the Executrix to purchase property from a decedent's estate with a provision that the property wo…
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Appellant Sherman Stephan, plaintiff in the Court below, appeals to this Court from an order dismissing with prejudice his amended complaint brought against ap-pellee Anna H. Brown, Executrix of the Estate of Anna Pearl Kostro, wherein Stephan sought rescission of a contract to purchase certain real estate, together with the Executrix’s deed given pursuant to the contract, and the return to Stephan by the Executrix of the monies he had allegedly expended on the premises.
Stephan entered into a written contract with the Executrix, whereby Stephan agreed to purchase certain described property belonging to the estate. The contract provided that the property would be free and clear of all encumbrances. Prior thereto the Executrix had been notified by the City that the property “revealed substandard conditions” under the local City Code. Subsequent to execution of the contract to purchase, the Executrix executed and delivered to Stephan an Executrix’s Deed containing no warranty against encumbrances on the property. Stephan accepted such deed as so executed and delivered.
Thereafter Stephan filed complaint against the Executrix to have the sale rescinded and to have both the contract and the Executrix’s Deed set aside and all monies expended by him in connection with the deal restored to him, because of the existence of said alleged “encumbrance”. Upon motion of the Executrix, the suit was dismissed with prejudice, from which order Stephan appeals to this Court. We affirm.
The trial Judge was correct in holding that the contract for sale of the property became merged with the Executrix’s Deed, that the latter controlled with respect to warranties of sale, and that absent such warranty in the deed the Executrix was under no duty or obligation with respect to any warranty against encumbrances on the property after the deed had been accepted by the purchaser. This rule has been upheld uniformly by the Supreme Court of Florida, except under special circumstances not present here. See White v. Crandall, 1932, 105 Fla. 70, 143 So. 871; Volunteer Sec. Co. v. Dowl, 1948, 159 Fla. 767, 33 So.2d 150; St. Clair v. City Bank & Trust Co. of St. Petersburg, Fla. App.1965, 175 So.2d 791. In addition to the foregoing, the rule is well settled that, in the transfer of realty belonging to a decedent’s estate an executor or personal representative has no power in his representative capacity to give a warranty or covenant of title, including a covenant against encumbrances, but has authority to *142convey only the interest that the decedent had in the realty in question. This, of course, is subject to the condition that the personal representative has done nothing in his said capacity to impair the title to the realty. See for full discussion of this question 31 Am.Jur.2d, Executors and Administrators, Sec. 172, White and Belcher, Probate Conveyancing, 12 U.Fla.L.Rev. 266 (1959), Denman v. Payne, 152 Ala. 342, 44 So. 635 (1907).
It follows that the order appealed from must be
Affirmed.
LILES, A. C. J., and McNULTY, J., concur.
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Opler v. Wynne, 402 So. 2d 1309 (Fla. 3d DCA 1981)…inary agreements and understandings relative to the sale of land usually merge into the deed of conveyance. Milu, Inc. v. Duke, 204 So. 2d 31 (Fla. 3d DCA 1967). The same rule applies to covenants contained in a land sale contract. Stephan v. Brown, 233 So. 2d 140 (Fla. 2d DCA 1970). However, there is a clear exception as to covenants in a land sale contract, which are outside of, collateral to, or independent of the provisions of the deed; they survive delivery and acceptance of the deed of conveyance and re…
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Am. Nat'l Self Storage, Inc. v. Lopez-Aguiar, 521 So. 2d 303 (Fla. 3d DCA 1988)…convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply....” Milu, Inc. v. Duke, 204 So. 2d 81, 33 (Fla. 3d DCA 1967). See Peterson v. Peterson, 431 So. 2d 672 (Fla. 3d DCA 1983); Stephan v. Brown, 233 So. 2d 140 (Fla. 2d DCA 1970); St. Clair v. City Bank & Trust Co., 175 So. 2d 791 (Fla. 2d DCA 1965). It is said that “[i]n such case, the delivery of the conveyance is merely a part performance of the contract, which remains binding as to its further provisio…1 / 2
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S. Nat'l Track Servs., Inc. v. DJ Gilley, 152 So. 3d 13 (Fla. 1st DCA 2014)…We last address the trial court’s summary conclusion that the contractual warranty at issue merged with the deed at the time of closing, thus, presumably, precluding Appellant’s claim. The court cited as support for its conclusion Stephan v. Brown, 233 So. 2d 140 (Fla. 2d DCA 1970). That case stands for the proposition that a real estate contract becomes merged with the deed and that, absent the existence of a warranty in the deed, the seller is “under no duty or obligation with respect to any warranty again…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- White v. Crandall, 105 Fla. 70 (Fla. 1931)
- Volunteer Sec. Co., Inc. v. Dowl, 159 Fla. 767 (Fla. 1947)
- ST. Clair v. The City Bank & Tr. Co. OF ST. Petersburg, 175 So. 2d 791 (Fla. 2d DCA 1965)