Opinion
August 24, 1951. On Rehearing October 6, 1951.
Appeal from the Circuit Court, Broward County, George W. Tedder, J.
Herman M. Berk and Joseph A. Wanick, Miami Beach, for appellant.
Rogers, Morris Griffis, Fort Lauderdale, for appellee.
In his bill of complaint, and amendment, appellee set out a contract for the purchase by him from the appellant of a tract of land for which $8,000 was paid in cash, $14,000 was to be paid upon transfer of title, and $43,000 was to be represented by a mortgage securing deferred instalments. The vendor, appellant, obligated himself to furnish the vendee, appellee, an abstract showing that his title was good and merchantable in the opinion of the attorneys the latter named. It was further provided that "Should any defects in the title * * * be pointed out, then the Party of the Second Part [should] have reasonable time in which to correct" them. The transaction was to be completed by a certain date unless additional time was actually needed to cure any defects in the title.
It was then mutually agreed that in the event the title was found clouded and was not made clear by the date specified, March 15, 1939, or within thirty days thereafter, the money paid would be returned to the buyer. On the other hand, if the seller performed the covenants of the agreement and the buyer failed in his undertaking, the cash payment was to be retained as liquidated damages.
When the abstracts were examined by the attorneys named they reported in a written opinion to their client that the title was not merchantable for several reasons. Their principal complaint was the existence of a tax lien of the United States government for more than $6,000 and this seems to be the only flaw we need to discuss. The appellee claimed that failure to discharge the lien obliged the appellant to refund the cash payment.
The only attempt, so it was alleged, on the part of the appellant to meet the objection was a communication from his counsel to appellee's bearing the statement that "a compromise settlement [had] been tendered to the United States government and the Collector of Internal Revenue * * * [had] indicated that [it would] be accepted * * *." (Italics supplied). Moreover, the appellant volunteered authority to the appellee "to withhold from the purchase price * * * a sum equal to the * * * sum * * * due unto the * * * government, * * * to be released to [appellant] upon the delivery * * * of a satisfaction of the lien of record," without authority to pay the lien, and without specifying any time within which the appellant would discharge it.
The allegations culminated in a prayer for the return of the cash payment, or a lien on the property for the amount, second to the lien of the government.
We will not reexamine the sufficiency of the bill as some of appellant's questions imply we should for the reason that Division B of this court denied a petition for certiorari to review the order of the chancellor denying a motion to dismiss directed to the pleading after it was amended, McClosky v. Johnston, Fla., 43 So.2d 725, but we will confine our observations to the merits of the objection we have described, the sufficiency of the offer to overcome it, and related matters.
The appellant first complains about the lack of proof of any tender of performance on the part of the appellee, or of demand by him that the appellant fulfil his promise. The answer to this seems to precipitate a decision on the validity of the objection stated because if the vendor was unable to make a good title, the vendee would not be obligated to observe the agreement. McKinnon v. Johnson, 54 Fla. 538, 45 So. 451; Thomas v. Walden, 57 Fla. 234, 48 So. 746. Also, if the vendor upon being confronted with exceptions to the marketability of the title made futile efforts to overcome them, there would be no occasion to make the empty request that he execute a deed which obviously would be unacceptable.
It seems to us that it would be difficult to conceive of a blacker cloud on a title than a government lien. To elaborate on its effectiveness would be idle. And the proposal to neutralize the objection was far from discharging the obligation to convey clear title. It was a mere statement that a tender of "compromise," not an offer to pay the full amount, had been made and the collector had "indicated" it would be accepted. If, eventually, it was accepted the lien would, of course, be released as appellant asserted, but the acceptance of less than the full amount due was purely speculative. True, this statement was amplified by a grant of authority to withhold from the balance of the purchase price a sum equaling the amount of the lien until satisfaction was forthcoming. However, there was no limitation on the time that release would be secured, either by compromise or full payment. Meanwhile, the cloud would persist perhaps indefinitely for the vendee was not authorized to precipitate a discharge by use of the funds retained by him. To emphasize the point, we note the testimony of the applicant given about a year later that the release had not yet been obtained. He said, "There is a compromise being affected now."
There was no obligation on the part of the vendee to make a further payment or deliver the mortgage to secure the instalments unless simultaneously the vendor delivered a clear title, and this he obviously was unable to do. Nicolopoolos v. Hill, 217 Ala. 589, 117 So. 185, 59 A.L.R. 185.
To repeat, at the stage to which the transaction had progressed when it collapsed, the vendor was unable or unwilling to remove the cloud, so a tender would have been feckless.
We conclude that the chancellor properly granted relief to the appellee.
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.