Henry D. Piper v. Cooper-Atha-Bar Real Estate & Mortgage Company, 113 Fla. 327

Davis, C. J. Suit at law was brought in the Circuit Court of Orange County to recover the amount due as the unpaid purchase price of lands contracted in writing to be sold to the defendant, and delivered into his possession, but as to which the title deeds had not passed because of the provisions of the contracts of purchase to the effect that deeds should not pass «until all installment notes had been fully paid. The contracts defined the terms of the purchase and the amounts to be paid.

At the trial. plaintiff obtained a directed verdict for the unpaid amounts due under the written contracts and notes sued on, but the court required the plaintiff in the suit to make out and deposit with the clerk a good and sufficient warranty deed to the premises whose purchase price was represented thereby, before permitting plaintiff to obtain issuance of any execution to enforce the judgment against the defendant vendee, who was allowed thirty days in which to pay the judgment and take up the deed after the warranty deed should be deposited as provided in the court’s order.

Where a contract of sale is executory, and covenant to convey and covenant to pay purchase money are dependent, vendor on vendee’s breach of the contract can only recover damages since the title to the land can only pass by deed, and a recovery of the purchase money will leave the title still in the vendor. Woods-Hoskins-Young Co. v. Dittmar, 102 Fla. 1000, 136 Sou. Rep. 710.

But where a purchaser of realty enters into possession of the premises under a written contract and pursuant to the giving of promissory notes in connection therewith for the price of the land involved, in an action on the contract and notes for the purchase price, the plaintiff need not allege a tender of a deed, thereby casting on the purchaser the burden of alleging and proving failure of consideration of the deed in case of failure to obtain the title.

The reason assigned for this rule is that the purchaser having executed promissory notes evidencing the last installment of a purchase price of real property, the possession of which has been delivered, to him under an agreement that upon payment of the note he shall receive a deed to the premises, such possession must be presumed to be of some value, and hence the note is not wholly without consideration', even if it should be found that the vendor’s title is defective, in which case the vendor may maintain an action on such note without alleging in the complaint a tender of the deed, thereby casting upon the purchaser the burden of alleging and proving the failure of consideration of the note pro tanto.

Sayre v. Mohney, 35 Ore. 141, 56 Pac. Rep. 526; Helvenstein v. Higgason, 35 Ala. 259; Davidson v. Dingeldine, 295 Ill. 367, 129 N. E. 79. The above rule would seem logically to apply with equal reason to those cases where there is a written contract of sale accompanied by promissory notes signed by the purchaser, for the purchase price of the land, where the purchaser has been let into the possession of the land because of his execution of the contract and the notes, and the action is upon the contract and notes, as is the case now before us.

The provision for stay of execution was for the- vendee’s benefit, and if available as ground of complaint at all, must be decided adversely to plaintiff in error on the authority of Horne v. Carstarphen, 128 Ga. 193, 57 S. E. Rep. 238; United States Installment Realty Co. v. DeLancy Co., 152 Minn. 78, 188 N. W. 212; Noyes v. Brown, 142 Minn. 211, 171 N. W. Rep. 803; Loud v. Pomona Land & Water Co., 153 U. S. 564, 14 Sup. Ct. Rep. 928, 38 L. Ed. 822. See also Smalley v. Sovereign Finance Co., 102 Fla. 32, 135 Sou. Rep. 558. The other propositions argued have been examined but we find no reversible error.

Affirmed. Whitfield and Buford, J. J., concur. Terrell, J., concurs in conclusion. Ellis, J., dissents. Brown, J., absent on account of illness.