April 21f, 1958: This cause was presented upon plaintiffs’ motion for the entry of a final summary judgment herein, as to possession of the property in controversy. The court has heard the arguments of counsel and has considered the depositions, pleadings and affidavits on file herein. In response to the motion for summary judgment, the defendants filed a response to said motion, which was sworn to by both of them.
It is undisputed that the defendants went into possession of the property in question under an executory contract of purchase. It is well settled that a vendor may maintain an 'action of ejectment against a vendee under an executory contract, which is in default, after notice of rescission.
The response to the motion for summary judgment, filed by the defendants, contains many denials, which are contradictory to their sworn testimony in their deposition taken or to the pleadings herein.
Plaintiffs’ complaint alleges that the plaintiffs are the fee simple title owners to the property. In the sworn response this is denied by the defendants, but it is admitted in the answer which they have filed. Furthermore, they set up that they went in under an oral agreement to purchase. The'law is settled that a plaintiff may prove title by showing that the relationship of vendor and purchaser existed between them, such as where plaintiff shows that the defendants entered into possession of the premises under an executory contract of purchase. In such a. case defendants are estopped to deny plaintiff’s title, without first having surrendered possession. Obviously possession has not been surrendered in the instant case, since the action is pending for possession of the premises.
*71For examples of contradictions in the affidavit and testimony of the defendants, the motion for summary judgment alleges that a second mortgage has not been paid. This is denied in the response to the motion but admitted in the deposition. Plaintiffs allege in their motion that they have made proper demand for payment, which is denied in defendants’ response, but admitted in defendant’s deposition. Defendants have not, in the deposition or in their response to the motion for summary judgment, testified in any way- that they have made any tender to the plaintiffs, in accordance with the admitted oral agreement.
Defendants have now been in possession of the premises for over one year under an executory contract, the terms of which they have not complied with. It is the opinion of the court that there is no material issue of fact concerning the rights of the plaintiffs to immediate possession of the premises of which they hold fee simple title.
It is thereupon ordered and adjudged that plaintiffs’ motion for summary judgment for possession of the premises described in their bill of complaint be and the same is granted. Proper final judgment will be entered by the court upon application of plaintiffs and notice given by them.
It is further ordered and adjudged that this case be stricken from the trial docket, and that the pre-trial conference scheduled herein for April 28, 1958, be canceled.
May 26,1958: This cause came on this day for entry of final- judgment after the entry of a summary judgment herein on the 24th of April, 1958, and the court being fully advised in the premises, it is thereupon ordered, adjudged and decreed that the plaintiffs Julius L. Horne and Clarence P. Carver are and were at the institution of this action, the owners in fee simple of the following described property—
Lot 53, Merlin Park, a Subdivision in the Northwest Quarter of Section 25, Township 43 South, Range 42 East, according to the Plat thereof on file in the office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, in Plat Book 23, Page 124, LESS the West five (5) feet thereof.
It is further ordered and adjudged that the plaintiffs recover of and from the defendants the possession of said property; that the notice of lis pendens heretofore filed herein by the defendants be hereafter considered null and void; and that the plaintiffs do have and recover of and from the defendants their costs in this behalf expended and taxed at $47.80, for all of which let execution issue.