Davis, Et Vir v. Battle , 132 Fla. 240 ( 1938 )

Under the Constitution, a married woman's separate real or personal property may be charged in equity and sold, and the profits thereof sequestrated, for money due upon any agreement made by her in writing "for the benefit of her separate property."

If the contract involved in this case was valid in its inception, that is, if, at the time it was made by the married woman, it was made for the benefit of her separate property, then certainly her subsequent repudiation of the contract if there was such, or failure to carry it out, could not have had the effect of rendering it invalid. It appears that Mrs. Davis purchased this property in 1934 for approximately $20,000.00. Therefore, by the terms of her contract with Battle Hicks, for the finding of a purchaser at a purchase price of $56,062.50, $26,062.50 to be paid in cash and the balance of $30,000.00 to be secured by a mortgage payable in one, two and three years, Mrs. Davis would have made a profit of approximately $35,000.00. Certainly this would have been a benefit to her separate property. The brokers, Battle Hicks, found a purchaser who was ready, willing and able to purchase on the terms set forth in Mrs. Davis' contract with Battle Hicks. Mrs. Davis accepted the purchaser, who paid a binder of $5600.00 to an escrow holder named by the parties, which sum was deposited as a part of the purchase price, and Mrs. Davis agreed in writing to pay said brokers $1137.50 as a commission for finding the purchaser. Then shortly thereafter there was some objection made by the purchaser to the abstract and did not close the deal and listed the property for sale at a higher price, to-wit: $65,000.00. But a subsequent increase in real estate values, if there was such, real or supposed, would not invalidate the contract, which was valid when made. The $5600.00 was returned to the purchaser at the direction of Mrs. Davis. If the purchaser had defaulted in carrying out his contract, Mrs. Davis could have retained the $5600.00 as a forfeiture under the terms of the contract. Thus in any event Mrs. Davis would have benefited by the contract. The appellees had earned their commission. They had found a purchaser who had agreed to purchase according to the terms prescribed by the owner and who had entered into a binding contract with Mrs. Davis and husband to that effect. Since Mary I. Davis was a married woman the contract to pay commissions could not be enforced at law, but under our Constitution this contract was and is enforceable in equity. Both in morals and in equity, the brokers having earned their commission and Mrs. Davis having contracted in writing to pay such commission, the decree of the court below in their favor should in my opinion be affirmed.

When an owner of real estate in a city desires to sell it and convert it into cash, in whole or in part, he or she is almost compelled to procure the services of a real estate broker. Mrs. Davis admitted that she wanted to dispose of her property. In order to do so, she sought the services of appellees and they found a purchaser who entered into a binding contract with her and deposited $5600.00 as part payment of the purchase price. In any event the contract was worth $5600.00 to her because of the forfeiture clause contained therein. The contract was enforceable against the purchaser, and constituted a new and valuable asset obtained by the married woman through the offices of appellees for which she agreed in writing to pay them the sum of $1137.50. For all these reasons, the chancellor rightly held that the contract offered in evidence in this cause was in itself an agreement made by a married woman in writing for the benefit of her separate property. But if the contract was not, per se, on its face, for the benefit of her separate property, the proven facts and circumstances under which it was made showed that it was. The Master found that the purchaser was ready, willing and able to consummate the purchase in accordance with the contract and that the complainants did not consent to the cancellation of the contract of sale by Mrs. Davis or the return of the $5600.00 deposit.

Furthermore, the effect of this contract would have been to render Mrs. Davis's separate estate more liquid. She would have received in the place of the lot approximately $26,000.00 in cash and a first mortgage for $30,000.00, bearing 8 per cent interest. In the case of Harness v. McKee-Brown Lumber Co., 89 P. 1022, the Supreme Court of Oklahoma held:

"The word `benefit' as used in the definition of valuable consideration to the effect that it may consist of a benefit to the promisor, means that the promisor has in return for his promise acquired some legal right to which he would not otherwise have been entitled." 1 Words and Phrases, second series, page 427.

The case of Blodgett v. Steinmetz, 98 Fla. 238, 123 So.2d 761, tends to support the holding of the chancellor below in this case, and much of the reasoning of Mr. Justice ELLIS in that case is applicable here.

It might be observed also that here, as between the appellants and the appellees, we are dealing with a contract which was no longer executory, but which had been executed. The brokers had carried out their part of the contract and had secured a binding contract of purchase, together with earnest money amounting to $5600.00 for Mrs. Davis on the terms which she had agreed to. As between her and the purchaser, it was her duty to furnish an abstract showing a good title, and it was then the duty of the purchaser to pay the balance of the cash and execute the notes and mortgage. If the purchaser, after being furnished with such an abstract, failed to pay the balance of cash and to execute said notes and mortgage within thirty days, Mrs. Davis could have enforced the contract by specific performance or she could have retained the deposit of $5600.00 as liquidated damages.

It is contended that the contract was not a benefit to the married woman's separate property because the sale was not consummated, but it appears from the record that the sale was not consummated because of any fault on the part of the brokers.

It is further contended that the $36,000.00 of profit represented by the contract might be treated as "unearned increment" which the brokers did not create, but the fact remains that said unearned increment would not have been available to the married woman, and would not have inured to the benefit of her separate property, unless she could find some one who was willing to pay for the property a price which included this "unearned increment." When she offered the property for sale at approximately $56,000.00 she knew that she only had $20,000.00 invested in it and that all above the latter sum represented "unearned increment," and knowing this she engaged, by written contract, appellees to sell the lot for a price which would return to her the investment she had in it together with a profit above said investment of $36,000.00. Thus the facts show that the contract in writing was made for the benefit of her separate property.

For these reasons I think the decree of the court below should be affirmed.

ELLIS, C.J., agrees to the conclusion.

ON PETITION FOR REHEARING.