Palm Beach Estates v. Croker

152 So. 416, 111 Fla. 671, 1933 Fla. LEXIS 2073

• Court: Supreme Court of Florida
• Decided: August 2, 1933
• Status: Published

Opinions

Per Curiam.

Bula E. Croker, widow of Richard Croker, brought a bill of complaint against Palm Beach Estates, a corporation, and J. B. McDonald to have cancelled a trust agreement between Bula E. Croker and her then living husband, Richard Croker, and J. B. McDonald, whereby lands conveyed in trust by the Crokers to McDonald could be purchased by McDonald or his assigns. By an answer and counterclaim, Palm Beach Estates and J. B. McDonald, upon appropriate averments and the deposit into the registry of the Court of the first cash payment on the purchase price of the land and a similar deposit of notes and a mortgage for the remainder of the purchase price under the contract of purchase, prayed an enforced compliance by Mrs. Croker with the right of McDonald or his assignee to purchase the land, McDonald having conveyed to Palm Beach Estates the title to the lands together with a transfer of the. contract right to purchase the lands. The Court decreed Palm Beach Estates, the assignee of J. B. McDonald, to be entitled to an enforcement of the contract right -to purchase, which contract did not provide for forfeiture of partial payments' made, should the property be. purchased by McDonald or his assignees and full payments be not -duly made. See Croker v. Palm Beach Estates, 95 Fla. 171, 114 So. 225, as to rulings on pleadings and Palm, Beach Estates, et al., v. Croker, 106 Fla. 617, 143.So. 792, affirming with modifications as to interest payments a final decree rendered August 21, 1929, in favor of the defendants. Subsequently Mrs. Croker filed an offer to perform and an acceptanc of the money in the registry of the court, but it has not been paid to her, the modified final decree providing that:

“The cash on hand in the registry of the Court, the cash to be paid by the defendants, notes numbered four (4) and five (5), and the mortgage to be executed and delivered by the defendants, shall be held by the Clerk of the Circuit Court until and subject to further order of the Court.”

The modified final decree rendered November 17, 1932, pursuant to the opinion of this Court (143 So. 792) adjudicated in effect that the defendants J. B. McDonald and Palm Beach Estates shall among other things, pay, and that the complainant Bula E. Croker shall accept the amount in the registry of the Court, viz.:

“Three Hundred Twenty-one Thousand One Hundred Four and 73/100 Dollars ($321,104.73) heretofore by the defendants and voluntarily accepted by the complainant, October 31, in 1932, now in the registry of the court, which sum shall hereafter be held by the Clerk of the Circuit Court for the use and benefit of, the complainant, subject to the further provisions of these modifications of the final decree.” Also

“Two Hundred Eight Thousand Three Hundred Sixty-one and 27/100 Dollars ($208,361.27) to be paid in cash representing the balance due and unpaid on the initial payment of the purchase price.”

The two amounts being thej initial payment on the contract of purchase. Numerous other payments were decreed and notes and mortgage were required to be executed to Mrs. Croker. Upon full compliance with the decree by defendants, the complainant and her privies would be enjoined to claim the lands' against the defendants. The modified final decree contains the following:

“12th. The aggregate of the sums above recited, together with said notes and mortgage, having been paid and delivered by defendants to the Clerk of the Circuit Court for the use and benefit of complainant, Bula E. Croker, in accordance with the terms of this decree, the Clerk of the Circuit Court shall forthwith report the same to the Court. The cash on hand in the registry of the Court, the cash to be paid by the defendants, notes numbered four (4) and five (5), and the mortgage to be executed and delivered by the defendants, shall be held by the Clerk of the Circuit Court until and subject to further order of the Court.”

“13th. In the event defendants, J. B. McDonald and Palm Beach Estates, fail to pay to complainant, Bula E. Croker, the aggregate of the foregoing sums provided by the fourth (4th) paragraph of this decree in Sub-paragraphs (a) to (p), both inclusive, and fail to deliver to the complainant the said notes and mortgage as hereinbefore provided, all according to the provisions of' this decree, then, and in such event the counterclaim of defendants shall stand dis'missed, the said contract of July 12, 1920, between complainant and her husband and J. B. McDonald shall be terminated, and the two several deeds dated July 12, 1920, between complainant and her husband and J. B. McDonald, recorded respectively in the Palm Beach County Records, in Deed Book 142, at page 108, and in Deed Book 142, at page-109, and the deed dated October 30, 1920, from complainant and her husband to said J. B. McDonald, recorded in Deed Book 146, at page 212, of the Palm Beach County public records, and shall be cancelled.”

An appeal was1 taken by the defendants' from the modified final decree.

The litigation and the adjudications in the lower court and in this Court proceeded upon the theory that either Mrs. Croker was entitled to a cancellation of the conveyance and the contract executed by the Crokers fi> McDonald or that McDonald and his assignee were entitled to have the title to the lands quieted in them upon complying with the terms of the purchase as an entirety under the contract.

By the terms' of the modified final decree the clerk of the court is required to hold the money in the registry of the court and to receive the other cash sums required to be paid on the purchase price of the lands as also the notes and mortgage to be executed for the balance of the purchase price, and to hold all such sums and instruments “until and subject to the further order of the court.” The entire proceedings contemplate and the adjudications require the tender by the defendants and acceptance by Mrs. Croker of the stated payments in cash and in notes secured by mortgage ' to' be, accomplished as' an entire single transaction. There is no' provision in the contract or in the decree for forfeitures of initial or other payments for failure to duly and fully comply with the terms of the contract under the decree.

On October 31, 1932, Mrs. Croker filed a petition containing the following:

“Your Petitioner, Bula E. Croker, hereby voluntarily agrees to specifically perform the covenants, agreements and stipulations' upon her part undertaken to be done and performed by the provisions of the contract of July 12, 1920, for the benefit of Palm Beach Estates, a corporation, and J. B. McDonald, and your Petitioner, hereby voluntarily accepts and agrees to accept Five Hundred Twenty-nine Thousand Four Hundred Sixty-six Dollars ($529,466.00) paid to the Clerk of this Court or into the registry of this Court, or so much thereof as now remains, as part payment, and the other moneys to be paid and the notes and mortgage tendered and fixed, directed and decreed by the opinion of the Supreme Court herein and as will be fixed and de creed by this Court in accordance therewith by its modified and final decree.”

The modified final decree dated November 17, 1932, did not decree the money in the registry of the Court to be paid to Mrs'. Croker, except as a part of a complete performance of the decree for specific performance, but required the Clerk to receive and hold further payments and the notes and mortgage as decreed to be paid and, executed by the defendants together with the funds in the registry of the Court, “until and subject to the further order of the court.” Until the decreed amounts as payments have been paid to the Clerk, and the notes and mortgage have been delivered to the Clerk as' decreed, the Court cannot have its decree performed as contemplated.

A failure of the defendants to duly and fully comply with the modified final decree entitles the complainant under the terms of the modified final decree to a dismissal of the counterclaim and to a cancellation of the deeds of conveyance and of the contract executed by the Crokers to J. B. McDonald; but the decree does not provide for, and there is no basis for decreeing that the money that was paid into the registry of the court by Palm Beach Estates, shall be paid to Mrs. Croker as partial payment on the contract price or as damages or forfeiture for failure of the defendants to duly and fully comply with the contract and decree of the Court. The money was paid into the registry of the Court by the defendant, the Palm Beach Estates, as a tender of the first payment of the contract price, which tender was refused by Mrs. Croker until she offered to accept it, October 31, 1932, after this Court had ordered a modification of the final decree of August 21, 1927. The modified final decree dated November 17, 1932, did not adjudge Mrs. Croker to be entitled to the sum that had been paid into the registry of the court by Palm Beach estates except as' such sum would constitute a portion of the total amount of cash with notes and mortgage ordered delivered to the Clerk by the defendants to be held by the Clerk “until and subject to the further order of the Court.”

Manifestly, under the modified final decree the title to the sum in the registry of the Court does' not pass from the depositor to Mrs. Croker except as a part of a complete transaction; and if the defendants do not fully comply with the decree the deeds and mortgage will be cancelled and the lands will be Mrs. Croker’s, putting her in status quo, while the sum in the registry of the Court will be returned to the depositor so that it will be placed in stahis quo, unless otherwise decreed in adjudicating the equities of the case. There is nothing in the contract or in the decree to transfer the title to the deposit from the depositor to Mrs. Croker, except as a part of a complete performance of the decree.

What is said in the opinions in Palm Beach Company v. Croker, 108 Fla. 265, 146 So. 230, and Palm Beach Company v. Palm Beach Estates, et al., 110 Fla. 77, 148 So. 544, as to Mrs. Croker being entitled to the deposit' in the registry of the Court, was predicated upon the modified final decree of November 17, 1932, which had not then been appealed from and interpreted by this Court. In neither case did the petitioner, Palm Beach Company, show a right in the funds demanded as against Mrs. Croker. It was not necess'ary in either case to adjudge the right of Mrs. Croker to the fund as against the Palm Beach Estates. This is indicated in the opinion in each case.

If the modified final decree as framed, be construed to adjudge to Mrs. Croker a right to the sum deposited in the registry of the Court by Palm Beach Estates, except as a part of a complete execution of the modified final decree, the decree would be erroneous and subject to reversal on this appeal taken from.such final decree.

Since the decree reserved the authority of the Court to adjudicate the complete execution of the decree, the fact of the failure of the defendants' to comply with the decree may be called to the attention of the court for appropriate orders without invoking a bill of review.

By petition the defendants set up their inability to comply with the modified final decree, due to change in business conditions pending the litigation following the suit instituted by Mrs. Croker to have the contract cancelled. The petitioners prayed for an order decreeing that the petitioners, Palm Beach Estates and J. B. McDonald, are entitled to receive the entire amount of the deposit in the registry of the Court. This petition was stricken, and the petitioners appealed at the same time the appeal was taken by them from the modified final decree.

A corporate resolution under date of November 26, 1932, adopted by Palm Beach Estates, that the money in the registry of the court “be paid to or held for the benefit of Mrs'. Bula E. Croker” is accompanied by a resolution of the corporation of “the willingness of Palm Beach Estates and J. B. McDonald to comply with the amended decree of the Court entered November 17, 1932.” This indicates a willingness at that time to comply with the decree, which compliance would give the deposit to Mrs'. Croker. Subsequently the petition herein referred fi> was filed alleging the inability of the defendant petitioners to comply with the decree because of financial conditions arising pending the litigation instituted by Mrs. Croker.

Therefore it appears that Mrs. Croker refused to perform the • contract and instituted litigation in December, 1923, to determine the validity of the contract, pending which litigation unusual changes in the general financial conditions made it impossible for the defendants to comply with the modified .final decree as rendered November 17, 1932, yet McDonald and his assignee have failed to comply with the decree which they sought and obtained against Mrs'. Croker, while she now seeks to comply with the modified decree. Mrs. Croker was successful in defending against some of the claims of the appellants in the appeal from the final decree of August 21, 1929, and the court costs in such appeal were by this Court ordered to be paid in equal portions by the appellants and appellee. The title to the money now in the registry of the Court remained in Palm Beach Estates at the time the modified decree was rendered, and the disposition of such money is provided for in the modified final decree only in cas'e the decree is fully executed; yet as it now appears that the modified decree cannot be performed by McDonald and his assignee, and as Mrs. Croker did not wholly fail in her contentions on the appeal taken by Palm Beach Estates and J. B. McDonald from the final decree of August 21, 1929, and as she offers to perform under the modified final decree, she is (notwithstanding the f-act that she first instituted the litigation which caused the delay in performing the contract as made, which delay contributed to the inability of' the defendant-appellants to perform) in equity entitled to participate to a limited extent at least in the distribution of the fund now in the registry of the court, deposited there as' a part payment on the contract, if she can show she sustained damages by reason of expenses incurred because of the appeal taken by Palm Beach Estates and J. B. McDonald from the final decree of August 21, 1929, in which she was partially successful, as against the claims of the appellants.

The modified final decree of November 17, 1932, here appealed from, which provides for further proceedings by the Court in the execution of the decree, should be affirmed, and the cause remanded for appropriate proceedings and for a further provision by supplemental procedure and decree as to the disposition of the funds' in court, if the modified decree for November 17, 1932, is not specifically and wholly performed; and in such further proceedings it may be determined, and decreed what part, if any, of .the money on deposit in the registry of the court should under all the circumstances of the cas'e, in equity and justice to both parties, be paid to Mrs. Croker to compensate her for any damage she has sustained in defending the proceedings on the appeal taken by Palm Beach Estates and J. B. McDonald from the final decree of August 21, 1929, and in subsequent proceedings in the cause.

The order appealed from which struck the appellants’ petition is reversed; and the modified final decree appealed from providing for further proceedings by the court in the enforcement of the decree, is affirmed, and the cause is remanded for further appropriate proceedings' and decree as indicated in this opinion.

It is so ordered.

Davis, C. J., and Whitfield, Terrell and Buford, J. J., concur. Ellis, J., dissents in part. Brown, J., disqualified.