John J. Knox, Commissioner, &c., et al., Appellants, vs. Leonidas W. Spratt and William B. Barnett, Appellees, 19 Fla. 817

Mr. Justice Westcott (after reading the foregoing statement of the case prepared by him) delivered the opinion of the court: The primary equitable right claimed here by the purchaser is performance by the vendor, the Savings and Trust Company, or Knox, Commissioner of the contract of sale of this lot.

The injunction granted is necessarily based upon the view that the plaintiffs in the ejectment suits are endeavoring to make an iniquitous use of the legal title to oust the tenant of tlie purchaser; that the purchaser has the equitable right to an investiture of the legal title in him as against the plaintiffs in these actions, and that such title can be acquired in the manner suggested by the facts and stated in the prayer of the bill. Whether specific performance can be decreed is the question therefore which determines the propriety of the injunction in this case.

The possession of Barnett, the tenant of the vendee Spratt, is for the purpose of this proceeding to be treated as the possession of Spratt, (although Spratt, the landlord, does not appear to he a party to the ejectment suits,) Practice Rules, 85; 3 Wait’s Actions at Law, 82 to 86, and we therefore inquire what is the nature of this possession. The bill states that Spratt was the highest bidder at a sale had in March, A.

D. 1880, of this lot, his bid being $15,-500 ; that the terms of sale were cash, or at the option of the purchaser, one-fourth cash and the balance in equal installments at six, twelve and eighteen months; that at the sale the vendor company announced that there was some defect in the chain of title which would be removed within thirty days; that said company would make a good and sufficient title to said lot to the purchaser; that the purchaser must make a payment down of $500; that he would at once be let into the possession, and that the balance was to be paid by him when the title was made; that the purchaser, Spratt, announced the wish to pay cash, and that after paying the $500 he was let into the possession of so much of the premises as is the subject of the ejectment suits against his tenant, Barnett.

The purchaser thus in possession affirms that he has at all times been willing to pay the balance due upon the acquisition of a good title, or upon the performance by the vendor of his contract to make such title to him. The time for the payments as stipulated has now passed, and the contract is off unless it can be performed by Knox, as Spratt declines to take such title as the vendor can give independent of this proceeding in equity. It is well settled that the stipulation here that the purchase: might take possession is not equivalent in law to a deed either in fee or for life, or for any definite time.

It is merely executory, and looks to the passing of the legal title at a future time. Cowen, J., in Wright vs. Moore, 21 Wend., 234, says of such a possession: “At the utmost it can do no more at law than create a quasi tenantcy at will. Taken in its strict import it is a mere license.” Price vs. Tuttle, 48 Barb., 153. Without the agreement as to possession the purchaser would be a trespasser.

Neither he nor his tenant would be liable in an action of assumpsit for use and occupation anterior to the time at which “ the contract went off,” because during that time he is in possessiou lawfully as purchaser, not as tenant, or in any way from which an implied or express contract to pay for use and occupation would arise. Little vs. Pearson, 7 Pick., 301; 1 Chitty on Contracts, 11 American Edition, 453; Sugden on Vendors, 179, 180, 8 Am. Ed.; Dwight vs. Cutler, 3 Mich., 567. Lord Denman, C. J., in Winterbottom et al. vs. Ingham, 7 Ad. & Ell. N.

S., a case where the vendee of an estate sold by auction had been suffered to enter upon and hold the premises while the title was under investigation, and the contract had afterwards been determined by want of title, says: “ The defendant certainty was considered, both by himself and the plaintiff, as purchaser not as tenant, and the plaintiff cannot convert him into an occupier liable to pay for his occupation by his own wrongful act in not completing the contract of sale.” In such a case when a contract is off by the fact that the vendor cannot make the title and other facts necessary to the termination of the contract, the vendor may maintain ejectment against the purchaser.

Eor whatever may be the relation of the purchaser in reference to his title as to strangers as between vendor and vendee, he or his tenant holds in subordination to the title of the vendor. This title he cannot deny in the action at law. '"While discussing this subject it may be well to refer to the allegation in the bill that a suit for use and occupation by the vendor here against Barnett, who was in as tenant of the purchaser, was unsuccessful. That case is reported in 18 Fla., 594. It is a matter of which we have actual judicial notice.

The question of the right of possession as between vendor and purchaser was not there discussed. We expressly state in the opinion there rendered that we say nothing of it. Our conclusion was based upon a peculiar state of facts existing between the company and Barnett, by which we thought that the company was estopped from urging the claim for the rent there demanded. This is the existing status as to the title proposed to be asserted in the action of ejectment by the commissioner, so far as it appears from the allegations of the bill.

What is the relation of the plaintiffs in this bill to Beans, the administrator of Foreman, the plaintiff, in the action of ejectment brought by him against the purchaser’s tenant ? The allegations of the bill upon this subject are as follows: In paragraph number two (2) of the bill plaintiffs allege that the company, Spratt’s vendor, were in possession of lot number 8, claiming a fee simple title therein derived “ by a chain of conveyances mesne and immediate, resting upon a deed executed on the --day of-by one John P.

Sanderson, as the administrator cle bonis non of the estate of said Jacob Foreman, in execution of an order of sale, and a sale theretofore made by one Elizabeth Foreman, then deceased, and predecessor in office as administratrix of said estate, and the probate proceedings upon which said sale was based.

Said deed of said Sanderson purported to divest the title to said lot out of the estate of said Jacob Foreman, in whom the title had heretofore resided.” In paragraph number six (6) of the bill plaintiffs aver “ that it appears from an investigation of the proceedings in the Probate Court of Duval county upon which the said Sanderson, as administrator de bonis non of Jacob Foreman, deceased, claimed the authority to execute, and did execute the said deed of conveyance, and which purported to convey said lot and the title thereto out of said Foreman’s estate, did not embrace said lot number 8, and did not authorize said conveyance, and the legal title remained in said estate notwithstanding said sale.” The allegation of the bill is, therefore, that at the date of the contract to sell by the company to Spratt, the title was in the estate of Foreman, and this is the ground upon which Spratt, the purchaser in possession, is unwilling to take such title as the vendor can make.

Unquestionably his contract was for a good title, and if he insists upon it a court of equity will decree performance if the vendor is in a condition to perform. If, however, it is apparent upon the case made by the bill that the vendor has no good title and that the court cannot control him to do acts by which he can acquire it or by which he can place himself in a position to perform his contract, the court will not decree him to perform an impossibility.

If the bill disclosed the fact that the vendor or its successor in title, and obligation, was in a situation to obtain a title was in such relation of contract to the title that it was only necessary for him to act and could act, and that he was neglecting to do

an act clearly within his power by which he might perfect it, a court of equity, we think, would control him to the performance of this act, and the performance of this contract. We do not mean by this that it would require him to purchase an outstanding title. What we say is in view of the prayer of of this bill and in view of the facts in this case.

If the vendor here occupies such relation to the proceedings in the Probate Court, by which the court at the instance of this administrator exposed this lot to sale and has received a bid therefor, as entitles him to a deed for the lot, then the court would compel him to apply for such deed and thus perfect his title. In order to save misapprehension we here state that it must not be inferred from wbat we have or do say that a court of equity would decree as against a purchaser even after confirmation specific performance of a contract of sale made by the County Court. See Andrews vs.

Scotton, 2 Bland’s Chy., 650 ; Attorney-general vs. Day, 1 Ves. Sr., 222. In this view we examine the allegations of the bill.

The claim of the plaintiffs is that by virtue of certain proceeding looking to the sale of this lot had by Deans, the administrator of Foreman since the contract of sale between the company and Spratt, and by virtue of relations existing between the company’s vendor and the purchasers at said sale and the heirs, and in view of the relief prayed in a cause now pending in chancery between the heirs of Foreman and Deans, the administrator seeking a settlement of his administration, the court may retain this case and upon the rendition of a certain decree in this pending suit by which the vendor will acquire title, may decree performance.

The foundation of this claim arises out of the proceedings in the Probate Court at the suit of Deans, the administrator, looking to the sale of the lot, the title to which occasions this suit. As shown by the record of these proceedings, which is an exhibit to the bill, the administrator filed a petition seeking to sell this lot to pay a debt alleged to be due Augustus E.

Bass and Jacob (we presume it should be Job) Bass by the estate of Foreman in the sum of $28,620, that after an order of sale directing a commissioner to sell the lot, a sale was made and the commissioner reported that it was “ sold to Augustus E. Bass and the heirs and legal representatives of Jacob (we presume it should be Job) Bass, deceased.” This report was filed in the Probate Court. Yothing else has been done in the premises.

The statute regulating this proceeding requires that upon such report the court “ upon being satisfied that there is no improper conduct upon the part of the commissioner or upon the part of the executor or administrator, and after requiring of each of them an oath that they are not directly or indirectly the purchaser, and upon its being made to appear that the requirements of the order as to the sale have been complied with and that the property has brought a fair price, he shall pass an order confirming the sale and shall direct a deed of conveyance to be executed to the purchaser by the commissioner.” The statute requires also that “ the administrator in such a sale as this, that is of real estate to pay debts where there is no personal property, shall, before receiving the money or the securities resulting from such sale, enter into bond with good security to be approved by the court, conditioned for the faithful application of the money to the payment of the debts and charges,” &e.

From this recital of the statute it is apparent that the status of a mere bidder at a sale is very far from being either at law or in equity of such a character as gives him the right by that fact alone to a deed for the property. The commissioner here is the agent of the court to execute a power and the purchaser acquires no right to a deed for the land until the sale is confirmed. Halleck vs. Guy, 9 Cal., 196 ; Smith vs. Arnold, 5 Mason, 420 ; Mason vs. Osgood, 64 N. C., 468; Blossom vs. Railroad Co., 3 Wall., 207 ; Forman and Dana vs. Hunt et al., 3 Dana, 614; Williamson vs. Berry, 8 How., 546; Yerby vs.

Hill, 16 Texas, 380; Yonge et. al. vs. Keogh, 11 Ill., 643 ; Harrison vs. Harrison, 1 Mar. Chy. Dec., 333. Admitting that jurisdiction to that end exists in the county court until the sale is confirmed, the purchaser could not be compelled to pay the money. Anderson vs. Scotton, 2 Bland., 650, 461;. Wagner and Marshall vs. Cohen, 6 Gill., 97. By his bid he becomes, it is true, a party to the proceeding, and can be heard in the subsequent proceedings, but he gets no title.

Plaintiffs allege, however, that their vendor is the assignee of the debt of the creditor, for the payment of which the sale was ordered, the creditor being the bidder, and if we understand the position of Spratt here it is that by virtue of this relation his vendor, the company, is invested with some equity as to the title. It must be evident that no such equity exists as to the assignee of the debt of the creditor. His interest is in the debt for the payment of which the lot is to be sold. As assignee of the debt he has an interest in the purchase money and the matter of its application. He acquires no title.

Even had the bid been transferred to him an application to the court and its action directing the deed to be made to him upon compliance with the terms of the statute in other respects is the usual method of proceeding.

The rule upon this subject is that such a bidder may make a valid transfer of his bid to a third person before the execution of the deed, and the court upon the application of such assignee may direct the execution of a conveyance immediately to him by the commissioner subject to the equitable rights or liens of other persons as against the original purchaser, which had become vested previous to the assignment of his bid. Proctor vs. Farnam, 5 Paige, 614; Halleck vs. Guy, 9 Cal., 181. According to the record, Augustus BJ.

Bass and the heirs of the other Bass are the bidders, and it must be plain that the relation of an assignee of a debt due them, the bidder, by the estate is an entirely different person from his assignors clothed with no rights by virtue of which he can demand title. His interest is in the purchase money.

Another position taken in reference to this matter is that these bidders had, before they occupied this relation to this property, “ made a warranty deed of conveyance to the vendor ” (Sanderson) “ from whom the said company had immediately derived title and were thus bound by their said covenants to make good the title of the said company to said lot.” Paragraph 7 of this bill, admitting for the purpose of disposing of this question, “ that conveyance to the grantor subsequent to his deed conveying to another in fee with warranty issues to the benefit of his grantee, and that the grantor is estopped from denying that he had no right at the time of his sale,” (see Sugden on Vendors, 556 bottom page; top page 204, 8 Amer.

Ed., where the extent and application of this rule is discussed,) it is not seen here that these bidders have acquired a good title. Nor do we see how it can be maintained that Spratt, the purchaser here, has an equity to compel these bidders to pay the purchase money and acquire the deed, for whatever may be their obligations resulting from their bid, such obligations exist with reference to the administrator, the heirs or the assignees of their debt, and nothing can result to their grantee with warranty until they have acquired the title, legal or equitable.

Until report and confirmation there is neither legal nor equitable title in the bidder. The title here is still in the estate, if it was there before these proceedings in the County Court. Plaintiffs allege the title to have been in the estate before these proceedings.

Whether this is so or not we cannot determine, because the proceedings in the Probate Court under which the deed of Sanderson, administrator d. b. n. of Foreman’s estate, embracing this lot, was made, and which is the foundation of the title of the company as set forth in paragraph 2 of the bill, are not before us, and as to this matter we must act upon plaintiff’s allegations. And if it be true that the title is now in the' estate we cannot see how Deans, the administrator d. b. n., is under any obligation, legal or equitable, to Spratt as to this title.

This bid is treated in two aspects by plaintiffs, first as a bid by A. E. Bass and the heirs of «T. Bass. It is in this view that they claim that the title vested in the grantee of the Basses, and through him in the company. Of this matter we have just disposed. But it is also claimed that the bid here was “in fact for said defendant company.” Row it is very evident that it cannot be both. "We must treat it as one or the other. We have treated it as the record, and the distinct allegation that the company was the assignee of the debt requires, and that is that the Basses were the bidders.

This we think is the case made by the bill. If it be that Lockwood, the agent of the company, bid it off in the name of the Basses, expecting that the company would control the matter by virtue of its relation as assignee of the debt, and that this relation authorized the use of the name of the Basses in the matter, his act in the name of the creditors is unauthorized. The fact as shown by the report of the commissioner is that the bid whether authorized or not was the bid of the Basses.

The company may have expected to get a title by crediting their bid with their debt: Even if the bid was their bid, and it was made under that apprehension, we are inclined to the view that the court should not confirm the sale requiring a cash payment against their protest. This disposes of this ease, except so far as the allegation of the pendency of a suit in equity by the heirs against the administrator is concerned.

The equity claimed here is not based upon the fact that such a suit is pending praying the relief asked, nor is it based upon any adjudication of the rights of the parties to that suit by the court in that case. Spratt claims an equity by virtue of what he conceives will be the decree of that court in the pending case. To this case he is no party, nor does he occupy any relation to the parties therein, plaintiffs or defendants, by which he can control their action.

Again the relief prayed in the bill is for a decree for an alleged devastavit of the administrator, and the allegation of Spratt here is that the heirs do not by it seek to change the antecedent status of the company as to the title, as set forth in this bill by Spratt. Besides, to this bill neither Spratt nor the company are parties. The contest is between the heirs and the administrator, and whatever may be the result neither Spratt nor Knox are bound, as neither of them are parties.

The heirs here may see proper to approve or assail the acts of this administrator in such manner as they choose, but their choice does not bind Spratt or Knox. Spratt has his own equities, and they are set up in this bill, and it is by them that his ease must stand or fall. We cannot see that any effect can be given to this suit except as a Us pendens, which is simply notice of its existence and character.

Looking at the case in view of the allegations of plaintiffs in their bill here it seems to be an effort of the heirs to change an unperfected and pending proceeding in the Probate Court for the sale of real estate to pay debts to a proceeding for a sale for the purposes of distribution, and that upon the ground that no debt was due, and the creditor or his assignee is not a party to the suit. Would a court of equity do this ?

We do not deem it improper here to state what we conceive to be the relations of Deans, the administrator, to Spratt, the purchaser, and to the company, the vendor, as they were the subject of considerable discussion in the argument of the case.

As to the institution of the proceedings to sell in the Probate Court, Spratt alleges that the said defendant company, for the purpose of perfecting its title to said lot, as your orators are informed and believe, and upon such information charge the fact to be, procured the said George Wheaton Deans, an attorney of this couit and the attorney of said defendant company in the matters growing out of said sale as hereinbefore stated, to sue out •of the Probate Court letters of administration d. b. n. on the estate of Foreman, deceased; that J. C.

Greeley, the agent of the company, became a surety on his administration bond, and that a sale of the lot was had. Row, so far as the purchaser, Spratt, is concerned, we can see no ground for any objection to this institution of this proceeding to .perfect his vendor’s title. That is precisely what his vendor contracted with him to do, and which he says he desires.

In a subsequent portion of his bill, Spratt alleges^ upon advice and belief, that the company and Deans are negotiating for a sale of said lot with the title acquired or sought to be acquired by the last administrator’s sale to a third party with the purpose of throwing additional complications and embarrassments about him in the assertion of his rights acquired under the contract of sale.

As to this contract of sale, Deans, the administrator, occupies no such relation to the vendee, Spratt, as imposes an obligation to protect his interest in any respect, and if there is anything in connection with the sale which would lead the administrator to oppose confirmation or otherwise affect the sale, or if he is aiding the vendor in a negotiation looking to a subsequent sale by the vendor, the only restraint upon his action is such as arises from his duty to those he represents, or to whom he is under legal or equitable obligations, and Spratt is not embraced in this class.

If the administrator here is the attorney of the creditors, he has assumed a position of hostility to the heirs. If he represents the debt it is his duty riot to contest it, which it is his duty to the heir to do, if there is legal ground for so doing, but it is not seen what this has to do with the rights of the vendee, Spratt.

It may .be the foundation of proceedings by parties having an actionable interest looking to his removal as administrator or for proceedings in the proper forum upon the ground that there is no debt for which the estate is bound, or it may be ground for action against him in reference to action in his office as an attorney.

But such inconsistent relation, if it exists, (and it is not the purpose of this court to say that it does exist, and what is here said is only in reference to the argument made,) can certainly never be urged as a ground upon which any equity in favor of his clients is to be operative to invest them with the legal title to this lot for the benefit of Spratt, the purchaser. A question which we have not discussed here, because we have deemed it unnecessary, is whether an order of the County Court confirming the sale is not necessary to take it/out of the statute of frauds. Attorney-General vs. Day, 1 Ves.

Sr., 221; Browne on the Statute of Frauds, 4 Edition, §265. The order overruling the motion to dissolve the injunction is reversed, and the case will be remanded' with directions to enter an order dissolving the injunction and for further proceedings. A petition for rehearing was filed in this case, and the rehearing was denied.