Benson v. Martin Et Ux.

141 So. 130, 105 Fla. 189

• Court: Supreme Court of Florida
• Decided: April 19, 1932
• Status: Published

Opinions

Per Curiam.

This appeal is from a decree for specific performance and incidental relief by injunction.

It appears that Benson owned a home in Arcadia and the Martins had a home in the country which had not been fully paid for, a deed of conveyance therefor from Keen being in escrow. The parties verbally agreed to' exchange their homes, Benson agreeing to pay Keen a balance due on the Martin home, abstracts of title to be mutually furnished. Each party took possession of the other’s home. There was delay in clearing the title to the Martin home. Pending which Benson without paying the balance due on the Martin home declined to complete the exchange of titles to the homes. The Martin home was thereafter conveyed to third persons. T’he Martins here seek an enforced execution to them of a deed of conveyance to the Benson home, and incidental relief.

If the particular agreement to exchange homestead real estate be enforceable and Benson was not justified in refusing to complete the agreed exchange because of the delay in perfecting the title to the Martin home, the conveyance of the Martin home to others makes the agreement to exchange impossible of complete execution and the Martins are not entitled to specific performance when Benson cannot also have it, the agreement to exchange homes being an entirety.

Beversed.

Bufoed, O. J., and Ellis, Teeeell and Beown, J.J., concur.

Davis, J., dissents.