Futura Realty, Inc. v. Wigdor

District Court of Appeal of Florida

Futura Realty, Inc. v. Wigdor

421 So. 2d 536, 1982 Fla. App. LEXIS 21071

CourtDistrict Court of Appeal of Florida

DecidedAugust 31, 1982

DocketNos. 81-2095, 81-2097

StatusPublished

Cited by1 cases

This text of 421 So. 2d 536 (Futura Realty, Inc. v. Wigdor) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Futura Realty, Inc. v. Wigdor, 421 So. 2d 536, 1982 Fla. App. LEXIS 21071 (Fla. Ct. App. 1982).

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Opinion

PER CURIAM.

We find no error in the trial court granting a summary judgment that recognized the right of a fee-title holder, of an undivided interest in a parcel of real property, to bring a statutory action for partition regardless of his motives and any equitable defenses to such action should be presented therein and not in an independent action. Condrey v. Condrey, 92 So.2d 423 (Fla.1957); Williams v. Ricou, 143 Fla. 360, 196 So. 667 (1940); Lockwood v. Walker, 127 Fla. 20, 172 So. 359 (1937); Montgomery v. Carlton, 99 Fla. 152, 126 So. 135 (1930).

We also find no error in the trial judge recognizing by the entry of a summary judgment that a party who owns in fee-simple¹ an interest in real property does not have to voluntarily sell his interest, therein notwithstanding the desire to sell of the other title holders. His motive for refusing to sell is immaterial. Compare: Williams v. Wells Fargo Bank & Union Trust Co.; 56 Cal.App.2d 645,133 P.2d 73 (D.C. 3d Dist., Cal.1943); Bailey v. Vaughn, 375 So.2d 1054 (S.Ct.Miss.1979); Croston v. Male, 56 W.Va. 205, 49 S.E. 136 (S.Ct.W.Va. 1904); 59 Am.Jur.2d, Partition § 118.

Therefore the final summary judgments here under review be and the same are hereby affirmed.

Affirmed.

OPINION ON REHEARING

By petition for rehearing the appellants contend that the property in question was in fact titled in a partnership and not owned individually.

We grant the rehearing and recede from so much of the opinion that affirms the summary judgment with the following instructions: we direct the trial court to determine how the property in question is titled. If it is in individual names then he should confirm the summary judgment. If the property in question is titled in a partnership, then he should vacate the summary judgment.

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PER CURIAM.

We find no error in the trial court granting a summary judgment that recognized the right of a fee-title holder, of an undivided interest in a parcel of real property, to bring a statutory action for partition regardless of his motives and any equitable defenses to such action should be presented therein and not in an independent action. Condrey v. Condrey, 92 So.2d 423 (Fla.1957); Williams v. Ricou, 143 Fla. 360, 196 So. 667 (1940); Lockwood v. Walker, 127 Fla. 20, 172 So. 359 (1937); Montgomery v. Carlton, 99 Fla. 152, 126 So. 135 (1930).

We also find no error in the trial judge recognizing by the entry of a summary judgment that a party who owns in fee-simple¹ an interest in real property does not have to voluntarily sell his interest, therein notwithstanding the desire to sell of the other title holders. His motive for refusing to sell is immaterial. Compare: Williams v. Wells Fargo Bank & Union Trust Co.; 56 Cal.App.2d 645,133 P.2d 73 (D.C. 3d Dist., Cal.1943); Bailey v. Vaughn, 375 So.2d 1054 (S.Ct.Miss.1979); Croston v. Male, 56 W.Va. 205, 49 S.E. 136 (S.Ct.W.Va. 1904); 59 Am.Jur.2d, Partition § 118.

Therefore the final summary judgments here under review be and the same are hereby affirmed.

Affirmed.

OPINION ON REHEARING

By petition for rehearing the appellants contend that the property in question was in fact titled in a partnership and not owned individually.

We grant the rehearing and recede from so much of the opinion that affirms the summary judgment with the following instructions: we direct the trial court to determine how the property in question is titled. If it is in individual names then he should confirm the summary judgment. If the property in question is titled in a partnership, then he should vacate the summary judgment.

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421 So. 2d 536, 1982 Fla. App. LEXIS 21071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/futura-realty-inc-v-wigdor-fladistctapp-1982.

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