I am unable to concur in the opinion prepared by Mr. Justice CHAPMAN, or to now adhere to the original opinion filed herein on March 4th, 1938.
It is my opinion that the decree of the Chancellor was correct because Mary I. Davis' estate was benefited and enriched by the procuring of a sales contract and the escrow of $5,600.00 by plaintiffs below in finding a purchaser ready, willing and able to buy the real estate of Mary I. Davis listed with the plaintiffs, and that this contract alone benefited and enriched her estate within the meaning of Section 2, Article XI, of the Constitution of Florida; and I think the law as enunciated in the case of Blodgett v. Steinmetz, *Page 259 98 Fla. 238, 123 So.2d 761, is applicable here. The estate of Mary I. Davis was benefited by the services rendered by Battle Hicks under her contract with them. The contract of sale and the escrow of cash provided thereby was a valuable asset in the hands of Mary I. Davis. She accepted the same pursuant to her contract with Battle Hicks.
That she thereafter repudiated the sales contract and voluntarily released the money placed in escrow, she thereby placed Battle Hicks in a position in which they could not subject that particular property of Mary I. Davis to the payment of the amount due them. By doing this, she made it possible for them to charge her remaining separate property for the payment of the amount due them under her written contract made with them for the benefit of her separate estate. See Harness v. McKee-Brown Lbr. Co., 17 Okla. 624, 89 P. 1020, a part of the text of which is quoted in original opinion; Holder v. West Florida Development and Investment Co., 103 Fla. 487, 137 So.2d 691. In the latter case we said:
"The right of the complainant in this case to specific performance by the Bank Trustee in the conveying of the title to the complainant is dependent upon facts which must be determined upon proper pleadings and proof. That is, whether or not under all the facts and circumstances she has paid to the land company all or more than she should have been required to pay under the terms of the contract and in the conduct of the parties in performance of the contract, and if it be found that she has paid in full all that she could be required to pay under the terms of the contract in connection with the conduct of the parties, then, although she is a feme covert she will be entitled to specific performance under the rule stated in Lenoir v. McDaniel, supra, wherein it was said: *Page 260
"`In a case where a contract containing mutual covenants is not enforceable as against one of the parties by reason of some disability, yet such party performs all the obligations on his part to be performed, the objection of lack of mutuality does not lie.'"
So we say that Mrs. Davis procured pursuant to her written contract a valuable asset to her estate and if she had performed her part of the sales contract she was in position to retain all the benefits accruing under that contract and her separate estate is chargeable to satisfy appellee's claim.
BROWN, J. concurs.