H. J. KRONER, OLGA A. DE KRONER, HIS WIFE AND OLGA KRONER DE LA CAMPA, APPELLANTS,
v.
LAWRENCE ESTEVES AND FRANCES G. ESTEVES, HIS WIFE, APPELLEES
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The court affirmed convictions for assault and battery but reversed convictions for interrupting orderly conduct of school, finding the latter statute inapplicable to students subject to school discipline.
The court affirmed assault and battery convictions but reversed convictions for interrupting orderly conduct of school, finding the statute inapplicable to students under school discipline.
[1] A contract for the sale of real property is not rendered unenforceable by the absence of two subscribing witnesses unless the property is homestead, the separate property…
[2] Florida Statute § 689.01, requiring two subscribing witnesses, applies to conveyances of real property, not necessarily to contracts to convey.
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Join FLexlaw to unlock all legal intelligenceAppellants William H. Smith and Bennie Jess were convicted of assault and battery and interrupting orderly conduct of school. The court considered the…
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The plaintiffs appeal a final judgment dismissing their complaint for damages. The trial judge has carefully set forth the grounds for the judgment as follows:
“1. That the suit filed by the Plaintiffs was for a breach of- contract for the sale of real property located within the State of Florida.
“2. That the contract sued upon has been attached to the complaint and that the contract affirmatively shows on its face the signature of only one witness for the alleged purchaser and alleged seller.
“3. That Florida Statute 689.01 requires that the contract for the sale of real property must be ‘signed in the presence of two subscribing witnesses. * * * > »
Although this may conflict with Radabaugh v. Ware, Fla.App.1970, 241 So. 2d 738, we believe that the trial judge has incorrectly stated that a contract for the sale of real property to be enforceable must be executed with the formality required by F.S. § 689.01, F.S.A. for a conveyance of real property. In Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120, the Supreme Court of Florida said, “We think that Sec. 689.01, supra, applies to conveyances as distinguished from contracts to convey * * And in that opinion the court held:
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“We conclude after an earnest effort to reconcile decisions with statutes and with each other that a contract for sale of realty must, to be enforceable, bear two witnesses if the property to be con*142veyed is homestead, or the separate property of a married woman, or if the relinquishment of dower is to be effected; that the two statutes first cited do not implement each other in all instances.”
The appellees have stated in their brief that the property described in the contract for sale is a homestead. The complaint does not show this to be true. If this fact appeared without issue upon a motion for summary judgment, then the law cited would be applicable to support a judgment for the defendants.
In addition appellees have in their brief relied upon many cases holding that a judgment dismissing a complaint for specific performance is proper where the contract is for the sale of real property and the contract is not executed in conformity with F.S. § 689.01, F.S.A. See Wexler v. Griffith, Fla.App.1958, 107 So.2d 147; Petersen v. Brotman, Fla.App. 1958, 100 So. 2d 821. These cases do not support a judgment dismissing an action for damages upon a breach of contract for the sale of real property where the contract is otherwise complete and lawful but does not have the requisite number of witnesses to conform to F.S. § 689.01, F.S.A.
Reversed and remanded for further proceedings.
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Citator
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Con-Dev OF Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973)…visions of this section or in accordance with the provisions of §§ 692.01 and 692.02.” This defense was immaterial and, therefore, properly stricken as Section 689.01 applies to conveyances, not contracts to convey. Kroner v. Esteves, Fla.App.1971, 245 So. 2d 141. Here we are concerned with a purchase agreement, not an actual conveyance. [*206] Contracts for the sale of land fall within the purview of Section 725.01, F.S. 1969, F.S.A.: “725.01 Promise to pay another’s debt, etc. — No action shall be brought…
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Free v. Free, 936 So. 2d 699 (Fla. 5th DCA 2006)…appellant’s argument that the contract for deed failed because it was not signed by two witnesses); Rosenthal v. Finger & Margolis, P.A., 460 So. 2d 993 (Fla. 4th DCA 1984); Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978); Kroner v. Esteves, 245 So. 2d 141 (Fla. 3d DCA 1971), and because the contract (agreement for deed) executed by Marion is a mortgage, the fact that it does not contain the signatures of two subscribing witnesses is no impediment to the equitable relief decreed by the trial court. Se…
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Leander Carroll and Jessie J. Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978)…the transfer of real estate even though one can become legally bound to execute a deed by virtue of having signed the contract. Zimmerman v. Diedrich, 97 So. 2d 120 (Fla.1957); Dolan v. Wright, 289 So. 2d 777 (Fla. 4th DCA 1974); Kroner v. Esteves, 245 So. 2d 141 (Fla. 3d DCA 1971). Since there is nothing in Section 689.01 to differentiate homestead realty, the requirement for witnesses on a contract to convey homestead had to come from another source. A study of the evolution of this requirement demonstrate…
Authorities Cited
- Frieda Zimmerman v. Diedrich, 97 So. 2d 120 (Fla. 1957)
- Radabaugh v. Ware, 241 So. 2d 738 (Fla. 4th DCA 1970)
- Petersen v. Jonas J. Brotman, 100 So. 2d 821 (Fla. 2d DCA 1958)
- City OF Tampa v. Sperry, 100 So. 2d 821 (Fla. 2d DCA 1958)
- Wexler v. Griffith, 107 So. 2d 147 (Fla. 2d DCA 1958)