Opinion
April 24, 1951. On Rehearing July 24, 1951. Rehearing Denied August 21, 1951.
Appeal from the Circuit Court, Volusia County, George William Jackson, J.
Arnold, Matheny Butt, Orlando and John R. Parkinson, Daytona Beach, for appellants.
Murray Sams and John L. Graham, De Land, for appellees.
Affirmed.
SEBRING, C.J., and CHAPMAN, ADAMS and ROBERTS, JJ., concur.
On Rehearing.
On October 25, 1944, S.P. Cole and wife, Jeannette Collins Cole, executed their note and mortgage to the Jefferson Standard Life Insurance Company encumbering described lands and personal property situated in Volusia County, Florida. On April 11, 1945, S.P. Cole and wife, Jeannette Collins Cole, executed a second note and mortgage to the Jefferson Standard Life Insurance Company, and the second mortgage encumbered the same real estate and personal property as described in the first mortgage dated October 25, 1944, with additional farm equipment accurately described in the second mortgage.
On December 31, 1947, S.P. Cole and wife, Jeannette Collins Cole, signed a purchase and sale agreement with Edna O'Harra and Juanita K. Moore to convey for a given price and terms of payment as therein described personal and real property containing some 273 acres, which real estate was subject to the two mortgages previously given to the Jefferson Standard Life Insurance Company supra. The agreement appears on the record as Exhibit "A".
Pursuant to the provisions of Exhibit A, supra, O'Harra-Moore, on December 31, 1947, entered into a purchase and sale agreement with A.J. Tillman and wife, Lottie Tillman, by the terms of which they were to convey the described lands to the purchasers supra for and in consideration of $15,000.00, and on said date accepted a cash payment of $6,500.00 and purchasers went into the possession of the property. This agreement was executed and delivered subject to the provisions of the two mortgages given to the Jefferson Standard Life Insurance Company. It appears that S.P. Cole and wife executed a deed to the real estate described and referred to in Exhibit A but a release of the described land from the Jefferson Standard Life Insurance Company was never obtained.
On April 22, 1948, Edna L. O'Harra and A.J. Tillman entered into a purchase and sales agreement with Charles L. DeForest and wife, Natalie W. DeForest by the terms of which described lands were to be conveyed and a dwelling was to be constructed thereon and fully completed for a designated sum. DeForest paid the sum of $3,000.00 when the agreement was signed and obligated himself to make additional payments according to the provisions thereof. This agreement is designated as Exhibit "B" and was executed subject to the several terms and provisions of the two mortgages by S.P. Cole and wife to the Jefferson Standard Life Insurance Company.
On November 26, 1948, Edna L. O'Harra executed a deed of conveyance to Charles L. DeForest and wife, Natalie W. DeForest, to certain described real estate situated in Volusia County, Florida. This instrument is referred to in the record as Exhibit "C". The above conveyance was executed subject to the mortgages from Cole and wife to the Jefferson Standard Life Insurance Company.
On September 19, 1949, the Jefferson Standard Life Insurance Company filed its bill of foreclosure of the two mortgages above referred to and Edna L. O'Harra, A.J. Tillman and wife, Lottie Tillman, and Charles L. DeForest and wife, Natalie W. DeForest, and many others, were made defendants. On March 1, 1950, a final decree of foreclosure was created by the Circuit Court of Volusia County, Florida. This decree adjudicated the property interest of the respective parties in and to the mortgaged premises and appointed James H. Sweeny, Jr., Esq., as special master to advertise the property and conduct a sale thereof and otherwise carry out the several terms and provisions of the final decree. On April 3, 1950, the special master sold the property at public sale to Pitt Cole Company, Inc., a corporation, for the sum of $31,800.00 A deed was delivered and the sale confirmed by the Chancellor.
On July 14, 1950, S.P. Cole filed an affidavit viz.:
"S.P. Cole, to me well known being by me first duly sworn deposes and says: that he is President of Pitt Cole Company, Inc., a Florida Corporation, which corporation at the foreclosure sale in above cause, conducted and held on the 3rd day of April, 1950, became and was the purchaser of the mortgaged property in question, towit: (Description of Property omitted)
"Said Sale was thereafter upon report of James H. Sweeny, Jr., the Special Master, appointed by order of this Court to make the same confirmed and Special Master's deed was authorized by this Court to and did issue from said Special Master to said Pitt Cole Company, Inc., therefor on April 10th, 1950 and by reason of that fact it then became and was, ever since has been and now is the owner of said property.
"That A.J. Tillman and Lottie Tillman, his wife, and Charles L. DeForest and Natalie W. DeForest also known as Natalie DeForest, his wife, of defendants in above cause, at the time of the commencement of this suit were, ever since have been and still are occupying parts of said property.
"That following delivery of the aforesaid Master's Deed to Pitt Cole Company, Inc., it did through affiant as its President and authorized agent produce the same together with a certified copy of the Final Decree of Foreclosure and Sale, made and entered herein on March 1st, 1950, to and demand of the aforesaid A.J. Tillman and Lottie Tillman, his wife, and Charles L. DeForest and Natalie W. DeForest also known as Natalie DeForest, his wife, that they surrender and deliver up to said Pitt Cole Company, Inc., as the purchaser at the aforesaid Foreclosure sale and the present owner thereof, that part of said property they were and still are occupying, but said parties did refuse, and continue to refuse to do so."
Pitt Cole Company, Inc., gave notice to the appellants that an application would be made to the Circuit Court of Volusia County for a writ of assistance requiring the appellants to surrender and deliver up the possession of the described property then possessed by each of them to the Pitt Cole Company, Inc., purchasers at the foreclosure sale of the property described in the final decree. The appellants appeared in the Court below and opposed the issuance of a writ of assistance. The answers, petition and objections made by the appellants to the issuance thereof were stricken by the Chancellor on motion of the Pitt Cole Company, Inc., as being legally insufficient and the writ order issued under date of August 12, 1950. The defendants appealed.
The answer of Tillman and wife to the petition or application for a writ of assistance on the part of Pitt Cole Company set out that they purchased under the terms and provisions of Exhibit A, supra, approximately 100 acres and went into the possession thereof and improved the same. They paid when Exhibit A was signed the sum of $6,500.00, which amount, in turn, was paid to S.P. Cole and the same was to apply on the purchase price agreement to pay $15,000.00. On April 28, 1948, they paid to S.P. Cole and wife the sum of $1,000.00. The sum of $700.00 was paid on June 8, 1948, and a further credit thereon for the sum of $800.00 was approved. Since December 31, 1947, Tillman and wife have expended $3,500.00 in permanent improvements by them placed on the property. They further state that continuously since December 31, 1947, they have been ready, able and willing to pay the balance due under the purchase and sale agreement. They have performed their obligation under the purchase and sale agreement and entitled to a conveyance free from the encumbrance of the Jefferson Standard Life Insurance Company.
Pitt Cole Company, Inc., a corporation, is the alter ego of S.P. Cole and it is being used to obtain possession of by the writ of assistance for the exclusive use and benefit of S.P. Cole. The said S.P. Cole has received under the agreement identified as Exhibit A from these appellants approximately $9,000.00. Additional thereto permanent improvements were placed on the property by the appellants at a cost of $3,500.00. The appellants are now ready, willing and able to pay the remaining sums due, if any, to the said S.P. Cole and his alter ego corporation. It would be inequitable and unjust to issue the writ of assistance and permit to S.P. Cole and his alter ego corporation, Pitt Cole Company, Inc., to dispossess these appellants of the described property after complying with the terms and provisions of the contract between the parties identified in the record as Exhibit A.
The answer of Tillman and wife to the application of Pitt Cole Company for a writ of assistance further set out that the said S.P. Cole, on numerous occasions while they were in possession of the property and expending money for the improvement of the same and prior to the time the foreclosure proceedings were filed, stated, that appellants (Tillman and wife) would be protected from his mortgage given to the Jefferson Standard Life Insurance Company. Cole's first statement in the presence of witnesses as above stated was during the month of May, 1948; second during the month of September, 1948; third to attorney Walter Hawkins during the month of February, 1949; fourth during the month of March, 1949, at Cole's packing house at DeLand; fifth Walter Hawkins, attorney for S.P. Cole, after the institution of the foreclosure suit, told Lottie Tillman and others that the Tillman property would not be sold if the balance due on the agreement was paid; sixth Cole, in the Spring of 1950 in the presence of a witness, stated that if he bought in the property at the Master's sale he would make the Tillmans a deed to the property they agreed to buy.
Seventh Cole's attorney told the Tillmans shortly before the Master's sale in April, 1950, that Cole had arranged to buy the property at the Master's sale and "would take care of the Tillmans;" eighth witnesses called on Cole at his packing house in DeLand two days prior to the Master's sale and Cole said: "If I bid in the property I shall take care of the Tillmans and the DeForests just as any honest man would do"; ninth during the hour of sale of the mortgaged property a friend of the Tillmans, a Mr. Paul, was bidding on the property so as to protect them and was prepared to bid to the sum of $40,000.00 for the mortgaged property; another person was at the same time bidding in behalf of S.P. Cole; Cole reassured Paul at the time of the bidding that he would protect the Tillmans and when so assured Paul desisted in further bidding; it was then sold to Pitt Cole Company for $31,800.00; tenth some two or three hours after the sale Cole stated that he was the successful bidder at the Master's sale and would make a deed to the Tillmans as soon as he got his deed.
Eleventh on May 15, 1950 Cole advised the Tillmans for the first time that he would not carry out his agreement and several promises to convey or make a deed to the Tillmans; neither would he make restitution to the Tillmans of the money paid on the property from time to time; twelfth the net result of the repudiation by Cole of his promises and agreement to convey the property has caused or will cause the Tillmans a net loss of $9,000.00 of moneys paid to Cole and the permanent improvements placed thereon of the approximate value of $3,500.00, making a total loss of $12,500.00 if the Court fails to grant them (the Tillmans) relief.
It further appears by the record that a surplus of $10,954.82 was paid into the registry of the Court to be disposed of by a later and appropriate order by the Chancellor. The appellants asked for an order permitting them to share in the distribution of said money but this request was denied.
The answer of Charles L. DeForest and wife to the petition for a writ of assistance on the part of Pitt Cole Company, Inc., sets forth in a substantial manner the same pertinent and material allegations as appear in the lengthy answer or petition filed by A.J. Tillman and wife. It is true that each pertinent and material allegation thereof is not the same as appears in the Tillman pleading. In a general manner it is safe to state that the principles of law applicable to the Tillman pleading likewise would be applicable to the DeForest pleading. Regardless of the points of cleavage, if any, we do not feel that it is necessary to elaborate further on the pleadings filed by DeForest and wife.
The case of Patrick v. Kirkland, 53 Fla. 768, 43 So. 969, involved a sale of real estate under execution based on a judgment. The heirs of the owner of the title of the real estate agreed that the firm of Jordan Patrick would supply the money and purchase the real estate at the Sheriff's sale and permit the heirs to repay at a later time Jordan Patrick, when the real estate would be conveyed by Jordan and Patrick to the heirs. This Court sustained this verbal agreement entered into between the heirs and the bidder at the execution sale and, in part, said: "A mere parol agreement, without consideration, to buy in land at an execution sale and to reconvey it to the judgment debtor upon payment of the purchase price and interest, may not create a trust in favor of the judgment debtor; but, where there is in the transaction an element of equity arising from fraud, confidential relation, refraining from bidding at the sale, or from further protection of the property from sale, gross inadequacy of the purchase price, the supplying by the debtor of a part of the purchase money, or otherwise, such circumstances may be shown by parol, and establish a trust."
The case of Thomas v. Goodbread, 78 Fla. 278, 82 So. 835, 838, involved the following factual situation: Cole held a mortgage on Thomas' land. A portion of Thomas' land was to be sold under execution, when he (Thomas) arranged for Cole to attend and bid in his behalf at the sale, which Cole attended according to the agreement, but he (Cole), instead of buying the property, permitted Goodbread to buy it at Sheriff's sale and then Cole bought the property from Goodbread and accepted a deed, had it recorded and Cole filed an ejectment suit in Goodbread's name against Thomas. Thomas filed an equitable plea to the ejectment suit setting up more elaborately the above statement of facts. This Court sustained the legal sufficiency of the equitable plea. The case of Patrick v. Kirkland, supra, was cited with approval. It was further stated "that, where one buys land at a judicial sale under a parol agreement to purchase for another, and fails to convey according to the agreement, a constructive trust arises, where promisee furnished the purchase money, or had an actual interest in the estate, or a bona fide claim thereto."
Also, text 78 Fla. 287, 82 So. 838: "`The doctrine is often used with great efficiency to prevent the triumph of fraud, and to protect persons under necessities in cases where at execution sale, or mortgage foreclosure, or other compulsory public sale, a party buys in land under a prior fraudulent promise made to the owner that the purchaser will take the title, hold the property for the benefit of such owner, and will reconvey to him on being repaid the amount advanced for the purchase price, and having thus by fraudulent contrivance cut off competition, and prevented the owner from making other arrangements to protect his property, and having obtained the property for much less than its real value, he refuses to abide by his verbal promise, and retains the land or other property as absolutely his own, equity will relieve the defrauded owner by impressing on the property a trust ex malificio, and by treating the purchaser as trustee in invitum.'"
The principle enunciated in Patrick v. Kirkland and Thomas v. Goodbread, supra, has been reaffirmed by this Court on many occasions. See Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 54 A.L.R. 1173; Winton v. Stone, 107 Fla. 636, 145 So. 845; and Elvins v. Seestedt, 148 Fla. 408, 4 So.2d 532.
The Chancellor erred in striking the answer and objections or petition of the appellants filed in opposition to the petition or application for the issuance of a writ of assistance directed to the property possessed by each of the appellants. It therefore follows that the order appealed from must be reversed with directions for further proceedings in the lower Court not inconsistent with the views herein expressed.
SEBRING, C.J., and TERRELL, THOMAS, HOBSON and ROBERTS, JJ., concur.
ADAMS, J., dissents.