McCabe v. Matthews

On March 1, 1889, the appellant, as plaintiff, filed in the circuit court his bill to compel the specific performance of a contract for the sale of real estate. The defendant demurred to this bill, on the ground of a lack of equity, which demurrer, on April 13, 1889, was sustained, and the bill dismissed. 40 Fed. 338. From this decree the plaintiff appealed to this court.

The facts as disclosed by the bill are that on February 9, 1880, Mrs. F. G. Montgomery, the owner of a tract of land, containing 1,635 acres, in Volusia county, state of Florida, entered into a written contract for the conveyance thereof to the defendant, Matthews. This contract recited a consideration of one dollar, the receipt whereof was acknowledged, and the further 'consideration of a tract of land situated near Orange Lake, containing five acres, the same to be planted out with five hundred orange stumps, and the stumps budded with sweet buds and warranted to grow, and the party of the second part is to fence the lands and keep the trees from being damages by stock of any kind'; and provided that the purchase should be at the refusal of the defendant for a period of forty-five days. On February 10th the defendant executed a written instrument, purporting to sell and assign to plaintiff an undivided half interest in the agreement and the land; and thereafter, on the same day, a further contract for the subsequent conveyance of such half interest. This latter instrument was in the following language:

'Whereas, Frances G. Montgomery, of St. John's county, Florida, has, on the 9th day of February, 1880, agreed in writing to grant and convey to me by deed all her estate and interest in section 40 in T. 13 S., of R. 32 east, and section 37 in T. 14 S., of R. 32 east, containing 1,635 acres, in Volusia county, Florida, subject to my refusal for forty-five days, for the consideration named in her agreement:

'Now, therefore, in consideration of the sum of one dollar to me in hand paid by William McCabe, of Tallahassee, Florida, the receipt whereof is hereby acknowledged; of the further sum of one hundred dollars, for which I am to draw upon said William McCabe with my deed to him, his heirs and assigns, for a one-half undivided interest in said lands attached, when I deliver to said Montgomery the deed to her referred to in said agreement and she makes to me the deed of said lands therein referred to in her said agreement; and of the further sum of fifty dollars to be paid by said William McCabe after the issue of the patent for said lands, and the completion of any proceedings founded on said patent, when issued, deemed necessary, in connection with said patent, to fortify the title to said lands and render it more marketable, the expenses connected with which issue and said proceedings connected therewith are to be borne solely by said McCabe,-I do hereby sell and assign to said William McCabe, his heirs and assigns, a one-half undivided interest in said agreement of said Montgomery, and in said lands so to be conveyed by her to me as aforesaid, and agree to make to the said McCabe, his heirs and assigns, a deed for said interest in said lands, and to attach the same to said draft on him as aforesaid within three months from the date hereof; it being understood that the expenses connected with the claim of one Stephen Snow to said lands or a part of them, and all other expenses, shall be borne equally by said McCabe and myself as joint equal owners of said lands so to be conveyed as aforesaid.

'In witness whereof I hereto set my hand and seal, at Jacksonville, Fla., this 10th day of February, A. D. 1880.

'[S'd] J. O. Matthews. [Seal.]'

Before the expiration of the 45 days the defendant notified Mrs. Montgomery of the acceptance of the contract. The plaintiff after the execution of his contract with the defendant went to the county seat of Volusia county for the purpose of investigating the claims of Stephen Snow, said to be in possession of the lands, or a part thereof. In such investigation he expended his time and money, and obtained valuable information concerning the lands and the title thereto, which he communicated to defendant, and shortly thereafter returned to his home in Toronto, Canada, instructing the defendant to send the deed with the draft, as provided in the contract. There he attempted to open a correspondence with defendant, but the last letter received from him was dated June 20, 1880; and, though plaintiff subsequently wrote several times, he received no answer, and, finding that defendant so failed to answer, he caused, on December 23, 1880, his contract to be recorded in the office of the clerk of the circuit court of that county. Subsequently the defendant procured a deed for the lands from Mrs. Montgomery, which deed bears date July 1, 1882, and was recorded in the office of the clerk of the circuit court of Volusia county on July 14, 1884, and in pursuance of such deed he entered into and has continued in possession. In fraud of plaintiff's rights, and with the purpose to defraud him, defendant kept the fact of the deed and the possession of the lands a secret from plaintiff, who was not informed thereof until the spring of the year 1887, when he received notice thereof from the clerk of the circuit court for Volusia county. Plaintiff thereupon obtained an abstract of the title, whereon appeared the deed from Mrs. Montgomery to defendant. As soon as it was practicable thereafter for him to leave his business affairs, and in February, 1888, he went to Florida to take steps for asserting his rights, and employed counsel, who at once demanded a conveyance to plaintiff of the undivided half interest, and at the same time notified the defendant of the plaintiff's readiness to perform his obligations.

The bill also alleged that plaintiff had always been ready and willing to comply with all the terms of the contract by him stipulated to be kept and performed, but that the defendant wholly refused and still refuses to comply on his part; and, further, on information and belief, that defendant had conveyed or attempted to convey, and mortgaged or attempted to mortgage, certain unknown pieces or parcels of the tract. There was no allegation in the bill of any tender of either of the two sums of $100 and $50, stipulated by said contract to be paid by plaintiff to defendant, nor was there any allegation of the present value of the property, but after the entry of the decree of dismissal two affidavits were filed by consent of the defendant, showing the value of the tract as a whole at the date of the decree, April 13, 1889, to be over $15,000.

Henry Wise Garnett, for appellant.

Horatio Bisbee, for appellee.

Mr. Justice BREWER delivered the opinion of the court.