Schultz, as Recvr. v. Freeland

145 So. 257, 107 Fla. 286

• Court: Supreme Court of Florida
• Decided: November 21, 1932
• Status: Published

Opinions

Per Curiam.

Appellees contracted to purchase real estate from the appellant corporation, the vendees paying a part of the purchase price and taking possession. Subsequently the vendees notified the vendor of the rescission of the contract by the vendees who remained in possession.

The vendor brought an action of ejectment to recover possession of the property, thereby acquiescing in the rescission of the contract. Appellees brought this suit seeking to have the prosecution of the action of ejectment enjoined, to have decreed and enforced a vendee’s lien for the portion of the purchase money paid and to have the contract cancelled. An interlocutory order enjoined the prosecution of the action of ejectment.

This appeal is from the final decree and from an order denying a motion to vacate the final decree and decree pro eonfesso entered in the cause. The decree adjudged to the complainants a recovery of the part payment made to the vendors with interest thereon and also amounts expended by vendees in improving the property, without any allowance against the vendees for their occupancy of the premises after their rescission of the contract to purchase.

A purported answer, counterclaim and demurrer was filed February 3, 1930, signed “American Building Corporation (scroll seal) by Marion I. Schultz, Agent.” Such agent attached an affidavit “that he is Resident Agent of AMERICAN BUILDING CORPORATION, the defendant named in the foregoing Answer, and in charge of the business and operation of said defendant corporation in the State of Florida; that each and all of the officers of said corporation are absent from the State of Florida; that as such Agent affiant has authority to and does make this affidavit for and on behalf of said defendant corporation.”

On motion, the court held the purported answer, counterclaim and demurrer to be “mere nullities” and the court rendered a decree pro eonfesso against the defendant corporation.

An answer under oath was expressly waived by the bill of complaint; but the answer of a corporation should be under seal of the corporation, and there is nothing in the signature to the answer to show that the “scroll seal” opposite the name of the corporation is the seal of the corporation; therefore the answer was not properly authenticated as the answer of the corporation. There being no authenticated answer on. file, the court properly entered a decree pro confesso upon the motion of the complainants. No error is shown in the order denying the motion to vacate the decree.

Upon consideration it appears that no substantial error is shown in the final decree, except that the vendor should be allowed a proper credit for use and occupation of the premises by the vendees from the rescission of the contract by the vendees and the acquiescence in such rescission by the vendor in bringing an action of ejectment against the vendees who remained in possession.

The decree is reversed for further proceedings not inconsistent with this decision.

It is' so ordered.

Buford, O.J., and Whitfield, Terrell and Davis, J.J., concur.