This is a suit wherein appellants, as plaintiffs, filed their bill of complaint against appellees, seeking specific performance of an option contract concerning real estate.
For purposes of brevity, Fitz Williams and his executors, Sallie Williams, Zibe Williams, and the heirs and devisees of *Page 153 Fitz Williams, will hereinafter be referred to as "Williams;" Howard Cole Company, Inc., will be referred to as "Cole Company;" Jettie E. Burroughs, unmarried, Mona A. Wandrack, and M. J. Wandrack, her husband, will be referred to as "Burroughs, et al., and George J. Jaya and Mary Phillips Baya will be referred to as "Baya;" and the New Jersey-Florida Land Company will be referred to as "The Land Company."
Upon the issuance of the mandate in the former appeal, (Howard Cole Company v. Williams, 157 Fla. 851,27 So.2d 352) plaintiffs petitioned the Chancellor for leave to amend paragraph 4 of the amended bill of complaint, which proposed amendment alleged, among other things, that the said Fitz Williams was not advised by the defendants in said case "3928," in negotiating the said contract of April 22, 1938, (lease-option contract), or otherwise, that Baya had intervened in said suit or was a party to said suit or that he had any right or claim against the land in question; and said Williams had no knowledge thereof. The plaintiffs further sought leave to amend Paragraph 6 of said amended bill by striking out certain words and pleading the notice of extension as reflected by the letter dated January 16, 1945, hereinafter quoted.
Upon the cause coming on the Chancellor, November 20, 1946, denied such petition of leave to amend and, on the same day and by the same order, the Chancellor dismissed plaintiffs' amended bill of complaint, at cost of plaintiffs, whereupon the plaintiffs, Williams, bring this their appeal and assign as error said order of November 20, 1946.
From the plaintiff's-Appellants' bill as amended, the following facts appear:
"The Land Company" in 1924 conveyed the property in question to Miami Bank Trust Company, as "trustee;" in due course "Cole Company" and "Burroughs et al." succeeded to the interest of "The Land Company" in the land, by reason of being stockholders of "The Land Company," which was dissolved; "The Land Company" on or about May 19, 1926, became indebted to Pierce Stevenson, upon which judgment was obtained in Palm Beach County for some $20,000.00, on February 2, 1929; and, in due course, by assignments, George *Page 154 J. Baya became owner of the Pierce Stevenson judgment against "The Land Company."
In November, 1936, or prior thereto, "Cole Company" and "Burroughs et al." brought suit in equity against the "trustee" to terminate the trust and quiet title against the trustee. This suit will hereinafter be referred to as "Case 3928," wherein he filed his answer, and sought to have his judgment decreed to be a first lien on the interest of "Cole Company" in the land involved.
On November 26, 1943, the Chancellor entered a final decree in "Case 3928," wherein it was decreed that Baya's judgment was a superior lien on the interest of "Cole Company" therein, an undivided 72% interest. He also decreed that the interest of "Burroughs et al." was 28%.
Under date of April 22, 1938, after the commencement of "Case 3928" and after filing of a lis pendens notice, and after Baya had intervened as a party defendant, Fitz Williams procured a lease and option agreement from "Cole Company" and "Burroughs et al." covering the lands, which was recorded on October 2, 1942. The pertinent portions are such as are quoted in the decision in the prior appeal of this case (Howard Cole Company, et al. v. Williams, et al., supra), and also the following:
The term of the lease was to commence on the date thereof and was to run
"2. . . . until final adjudication by Court of Competent jurisdiction of the chancery cause hereinbefore set forth by style and number, pending in Highlands County, Florida, which said final adjudication shall include ruling by Supreme Court of the State of Florida, on appeal, if appeal be taken therein, favorable decision by the Supreme Court of Florida and the expiration of time for petition for rehearing thereon (assuming favorable ruling on behalf of complainants in said cause)."
Further provisions of the lease-option contract were:
"4. . . . Such option shall extend from date hereof until final adjudication of chancery cause aforesaid, as hereinbefore provided . . . *Page 155
"5. . . . In the event the parties of the first part are not able to deliver a marketable title on or before five (5) years from the date hereof, the party of the second part shall not be obligated to purchase said lands, but the privilege hereunder given to the party of the second part to purchase said lands shall, at the option of the party of the second part, continue in full force and effect after such five (5) years period from year to year until parties of first part are able to deliver a marketable title. The party of the second part shall notify parties of the first part of his election to extend option period by letter addressed to W. E. Dunwody, of Arcadia, Florida, as agent for parties of the first part. During such extension, at option of party of the second part, the terms of this contract shall be obligatory upon each of the parties hereto. If the parties of the first part are unable to deliver a merchantable fee simple title to said lands as herein contracted for, through adverse ruling in chancery cause aforesaid, then this contract shall be at an end and the parties hereto relieved of all liability hereunder."
"8. The party of the second part, on his part covenants and agrees, in the event parties of the first part are not successful in chancery cause aforesaid, or the hereinbefore described property is found unmerchantable, as herein specified, that he will forthwith and immediately deliver to parties of the first part abstract of title delivered to him or his attorney, for examination, and will promptly surrender up this lease and option for cancellation."
On January 27, 1944, "Cole Company" appealed the final decree in "Case 3928" of November 26, 1943, as amended, and Baya, as well as the appellants, filed assignments of error. This appeal pended until April 30, 1945, when the parties entered into a stipulation for settlement of their controversy, wherein "Baya," "Cole Company" and "Burroughs et al." agreed to dismiss the appeal and, among other things, it was agreed:
"3" "That simultaneously with the dismissal of the appeals pending in the Supreme Court of Florida, mentioned in the first and second paragraphs of this stipulation, the Intervenor, *Page 156 George J. Baya, shall execute and deliver unto E. D. Treadwell, Jr., of the firm of Treadwell Treadwell, attorneys at Arcadia, Florida, a satisfaction of that certain final decree dated the 26th day of November, A.D. 1943, entered in Cause No. 3928 in the Circuit Court in and for Highlands County, Florida, and recorded in Book 25, at Page 571 thereof, as modified and amended by that certain order of said court dated January 25, 1944, and recorded in Chancery Order Book 26, at page 118 of the public records of Highlands County, Florida, insofar as said final decree and order amending the same enters a personal money judgment against Howard Cole Company, Inc., Howard Cole, individually, New Jersey-Florida Land Company or T. T. Reese, and insofar as said decree imposes any duties upon or fixes any claim against Lake Stearns Development, Inc., on Jettie E. Burroughs and Mona A. Wandrack, joined by her husband, M. J. Wandrack, and it shall be provided in said release or satisfaction that the Intervenor does thereby disclaim any interest in the subject matter of Cause No. 3929, wherein Jettie E. Burroughs, Mona A. Wandrack, joined by her husband, M. J. Wandrack, are plaintiffs, and Miami Bank Trust Company, et al., are defendants."
"5" "That the receiver herein is hereby authorized and directed, upon the dismissal of the appeals in the Supreme Court heretofore described, to execute and deliver unto the said George J. Baya and his wife, Mary Phillips Baya, and Jettie E. Burroughs, Mona A. Wandrack and M. J. Wandrack, her husband, a deed of conveyance conveying the lands entrusted to him, as receiver herein, and assigning thereunder all personal property evidenced by that certain trust deed dated December 10, 1924, recorded in Deed Book 2, at page 597 to 600 of the public records of Glades County, Florida, and recorded also in Deed Book 7, at page 544, of the public records of Highlands County, Florida, in the public percentage, to-wit: 72% to George J. Baya and Mary Phillips Baya, his wife, and 28% to Jettie E. Burroughs and Mona A. Wandrack and M. J. Wandrack, her husband, whereupon said receiver shall be discharged." *Page 157
"Cole Company" and "The Land Company" gave Baya their deeds to the land, and Baya satisfied his then $40,000.00 judgment.
It appears that Fitz Williams for several years gave notice of his election to extend option period prior to and including the year ending April 22, 1945.
Fitz Williams died in December, 1944, and Zibe (Z. K.) Williams and Sallie Williams qualified as executors and, in January, 1945, the following letter was written:
"January 16, 1945
"Mr. W. E. Dunwody, Agent, Howard Cole Company, Inc., Arcadia, Florida.
"Dear Sir:
"Since the death of my father, Fitz Williams, in December, 1944, I have been going over a number of his papers and I do not find a copy of the notice of his election to extend option period on certain lands in litigation in Highlands County, and I wonder if in his ill health he had neglected to do so.
"If such is the case and no notice was sent you, this will be your authority to extend the option as per agreement identified in File No. 7873 agreement dated April 22, 1938.
"Also request that you be good enough to inform me as to the present status of the suit of this property.
"Thanking you and with best regards, I remain
"Very truly,
(s) Z. K. Williams Z. K. WILLIAMS, Executor, Estate of Fitz Williams, Dec.
According to plaintiffs' pleadings, the relative status of the parties is as follows:
(1) Williams had notice of the suit (Case 3928) and his rights were expressly made conditional upon the successful termination of the suit in favor of "Cole Company," and Burroughs et al.," from whom Williams claimed as lessee and optionee.
Headnote 2, in Howard Cole Company, Inc., et al., v. Williams, et al., (supra) reads as follows: *Page 158
"Lessee under lease contract containing option to purchase was bound by the judgment in an action to which his lessor was a party, especially where the lease and option contract referred particularly to the suit pending and enforcement of option contract was made dependent on the result of that suit."157 Fla. 851, 27 So.2d 352.
(2) The suit (Case 3928) did not terminate successfully to the extent that "Cole Company" and Burroughs et al." could convey a marketable title, because of Baya's prior adjudicated lien of over $40,000.00, and Baya's claim had been asserted in the suit when the lease and option contract were made.
(3) After an adverse decree in the Circuit Court in Case 3928, the parties appealed, but the appeal was dismissed. The lease-option contract makes reference to an appeal but it doesnot appear that the lessors covenanted or promised the lessee to appeal. The reference to appeal had reference to the term of the lease if an appeal be taken.
(4) The Case 3928, having terminated unsuccessfully as to "Cole Company" and "Burroughs et al.," the parties had a right to settle and compromise their controversy under the circumstances, even with knowledge of Williams' lease and option contract.
(5) Even if Baya took title to the property with constructive notice of Williams' rights, such rights appear to be those of lessee, and the Williams' promise to surrender without the right to purchase, inasmuch as Williams' option to buy was dependent upon the lessors being successful in Case 3928, which were not.
Such being our conclusion, we see no need of passing on the effect of the letter of January 16, 1946, or the recital in the will. However, we quote the following:
"If several executors are named in a will, one or more qualifying shall be entitled to execute all the powers and trusts confided to all in the will, unless specially prohibited by the will; if more than one qualify, all must join in discharging the functions of executor, unless the county judge shall give special authority to one or more of such executors to discharge such functions. Each executor shall be responsible for *Page 159 his own acts only, unless by his own act or gross negligence he has enabled or permitted his co-executor to waste the estate. The foregoing shall likewise apply to joint administrators." Sec. 732.50, F.S.A. 1941.
The plaintiffs might have been allowed to amend their bill, but the proposed amendment was to the effect that Williams did not know on April 22, 1938, that Baya was a party to such suit and had been a party since June, 1937, when in fact his lease-option contract made specific reference to this very same suit, and the option was contingent upon "Cole Company" being successful therein; in fact, according to plaintiffs' pleadings, "Cole Company" were unsuccessful and Baya was successful. Under the circumstances, Williams was charged with imputed knowledge of the subject matter of his lease-option contract, and his own pleadings and proposed amendments show that he has no equitable rights.
Treating plaintiff's motion to amend, as presented to the Chancellor on November 20, 1946, the plaintiff's position would be as above set forth. Under these circumstances, the Chancellor found the bill to be without equity and granted Baya's motion to dismiss it. If the Chancellor is to be found in error, I think it proper to point out wherein he has erred and the fallacy of his ruling. I fail to find it.
THOMAS, C. J., concurs.
ON REHEARING