Shammas v. Bates , 9 F.2d 423 ( 1925 )

CALL, District Judge.

This cause comes on for a hearing upon the motion to dismiss the bill of complaint, and.on the motions of the complainant for the appointment of a receiver and for an injunction.

The bill of complaint sets out a contract on tbe part of the defendants to sell and convey to tbe complainant a long-term lease on certain property in the city of Jacksonville. A copy of the instrument is attached to the hill of complaint and made a part of it, and is as follows:

“Part Purchase-Money Receipt and Contract,

“Received this 10th day of September, A. D. 1925, of Naseem N. Shammas the sum of three thousand dollars to he applied on the-purchase price of the following property: That certain lease from Edward L. Stevenson and Cassie B. Stevenson to the Park Hotel Company, a corporation, dated January 1,1915, for a period of ninety-nine (99) years, recorded in Book 171 at page 669 of the current public records of Duval county, Florida, and covering the east one-half (%) of lot three (3) in block forty-three (43), Hart’s Map of Jacksonville; the undersigned Jessie Kendrick Bates being the present owner of said lease — which I hereby agree to convey by good and sufficient warranty deed a record, marketable, fee^simple title, free and clear of all incumbrances to Naseem N. Shammas or such person, firm, or corporation as he may designate, for the sum and price of two hundred thousand dollars, upon the following terms: Fifty thousand dollars cash upon the delivery of a deed as above provided, balance to be payable at the rate of ten thousand dollars on or before each year for 15 years/with interest at 6 per cent, per annum, and secured by a mortgage on said lease. Of said fifty thousand dollars cash, the three thousand dollars paid hereunder is to credited. Taxes, insurance premiums, rentals, and the interest on any mortgage on said property are to be prorated of the date of closing.

“I agree to furnish the said Naseem N. Shammas complete abstracts of title to said property within 90 days from the date hereof, and to allow 30 days from -the delivery of said abstracts for their examination. If, upon the examination of tho title to said property, a record, marketable, fee-simple title, and one clear of all incumbrances, is not shown by said contract and/or the public records, I agree to return to the said Naseem N. Shammas the said sum of three thousand dollars theretofore paid to me, and the said Naseem N. Shammas shall return to me the said abstracts. If the said Naseem* N. Shammas do not notify me as to the state of said title within 30 days after the receipt of said abstracts, or if they shall fail to perform and complete the terms of this agreement within 30 days after receipt of said abstracts, I am to retain the sum of three thousand dollars, above referred to, in full settlement of all liability thereunder.”

This paper was duly acknowledged by husband and wife, as required by the Florida statutes.

The bill alleges due notice to the defendants within the time allowed by the instrument of the acceptance of the title and offer to complete the purchase and. the refusal of the defendants to complete the transaction, except upon certain conditions therein set out, to wit, by the delivery, of the papers in escrow to be held until the entire purchase money was paid. The motion to dismiss challenges the bill on various grounds, as not stating a ease for specific performance.

The ground most strenuously urged is that the contract is too vague and indefinite for the court to degree specific performance. Taking the contract and considering the language therein contained, it seems to me that there is no difficulty in ascertaining the intentions of the parties thereto. It is evident that it was the intention of the defendants to sell and assign the leasehold interest of the wife to the complainant on the terms of $50,000 cash payment on the acceptance of the title and securing by purchase-money mortgage upon the leasehold the payment of $150,000, in installments of $10,000, on or before each year, for 15 years. There is nothing vague or indefinite in such an agreement. It may not be such an agreement as counsel would have advised, had they been consulted beforehand, but there is no ambiguity such as would call for construction, or make the agreement, solemnly entered imto and acknowledged, invalid- or unenforceable. A lawyer, preparing the agreement, would not have used the words “warranty deed,” or “a record, marketable, fee-simple title,” when applied to a lease; but the intention of the parties is clear, it seems to me, the same as if it was that the title and right of the married 'woman would be conveyed to the purchaser by a proper instrument recognized by law for that purpose. I am of opinion, therefore, that the motion to dismiss must be denied.

The bill prays for an injunction against the defendants, restraining them from ineumbering the leasehold or disposing of same during the pendency of this suit. The con-, tract is on record and notice to the world, and any one dealing with the defendants with relation to the property would take it cum onere of complainant’s right. I cannot, therefore, see the necessity for such an order and will deny the application.

There is also a prayer for the appointment of a receiver for the property, and this seems to be grounded upon the allegation' that the defendant in whom the title is vested is a married woman, and damages could not be recovered against her; but this is not sufficient in this case to produce necessity for the appointment of a receiver to preserve the corpus. It is apparent from the bill that but $3,000 of the $200,000, to be paid has as yet been received by the defendants. This leaves over $190,000 yet to be paid. Unquestionably the court, in decreeing a specific performance, would in its decree protect any right the complainant would have to be recouped from the amount due the defendants, for any damages suffered by reason of their refusal to complete the contract.

The motion for the appointment of a receiver will be denied.