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affecting him with such notice. Actual knowledge of such possession on the part of those sought to be charged with such police is not necessary. Notice in such cases is a legal deduction from the fact of possession.
NOTICE.-POSSESSION TO BE CONSTRUCTIVE NOTICE OF CLAIM OF TITLE must be open, visible, and exclusive, and is shown by any use of the land that indicates an intention to appropriate it for the benefit of the possessor. Such use may be any to which the land is adapted, and is calculated to apprise the world that the property is occupied.
SPECIFIC PERFORMANCE-EVIDENCE OF INCREASE IN VALUE.-In an action to enforce specific performance of a contract for the conveyance of land evidence of an increase in value of the land must be limited to a time at or near the making of the contract and to the value at that time as compared with its value at or near the time that suit is brought. Evidence of the value of the land seven or eight years before such contract was made as compared with its value after suit is brought is too remote to be admissible.
PLEADING.-ALLEGATA AND PROBATA MUST CORRESPOND, and however full and convincing may be the proof as to any essential fact, this alone is insufficient unless the fact is averted.
SPECIFIC PERFORMANCE-NOTICE OF EQUITIES–MARRIED WOMAN'S TITLE.-A vendee of real estate who purchases with notice of the equities of an occupying tenant under a contract to purchase, cannot defeat specific performance of the contract of a former grantor because of the intervention of the title of a married woman between him and such grantor, especially when she has conveyed all of her interest in the land.
Blount & Blount, for the appellant.
444 LIDDON, J. Several grounds were alleged and sought to be proven by the appellee, the Pensacola, Gulf, Land and Development Company, as sufficient to bar the relief sought by the complainant. Such of these grounds as it seems needful to notice may be briefly summarized as follows: 1. Laches of complainant and those through whom he claimed in performing the contract, and in seeking performance by the defendant; 2. That the Pensacola, Gulf, Land and Development Company is an innocent purchaser for value without notice of complainant's equi. ties; 3. That said defendant derived title through a married woman, and that specific performance could not be had against her, nor against her grantees.
The question of the possession of the complainant and of the Hargises and Bonifay, through whom he claimed, is one of primary importance in the disposition of this case. Whether or not they were in possession of the premises in controversy, and the nature and extent of such possession, are issues that materially affect other questions in the case, and must be first determined. We will not attempt any statement or summary of the evidence upon this subject. It is not entirely free from conflict and contradiction. We state only the conclusion reached by us as to the facts established by the weight and preponderance of the testimony, or the admissions contained in the pleadings. The testimony shows that E. C. Bonifay, at the time of his contract of purchase, paid a part of the purchase money, and, with the full knowledge and consent of Dowd and Stallsworth, a very short time after moved upon the premises in question, and lived 445 in a house which was situated thereon until the house was destroyed by fire a short time before he assigned his rights under the contract and his interest in the land to the Hargises, a period of one year or thereabouts. Three or four months after he (Bonifay) entered into possession, he had a surveyor to make a survey of the lot so bought by him, and to indicate the boundaries thereof, except where there were water or shore line boundaries, by setting up posts or stobs, and by blazes and marks upon the trees standing near such boundaries. These boundaries were also plainly indicated by an open space estimated at one and a half to four feet wide, from which the undergrowth and shrubbery had been cut and removed. The evidence does not show that this open space was made for the express purpose of indicating a boundary, but that the smaller growth was cut and removed for the convenience of the surveyor in the use of his instruments and for running the line. One of these openings in the undergrowth was afterward used as a path, and the other remained plainly and distinctly visible at the time the complainant acquired his interest in the property. Bonifay made some small improvements and inclosed about a half acre of the land for a garden; he used the land within the limits marked by the surveyor for firewood, and took care of it and kept trespassers from intruding upon it. R. B. S. Hargis and R. W. Hargis after this entered into possession, built thereupon a large frame building for a private hospital; also built a stable, other outhouses, and a wharf and fences. The hospital building cost between fourteen hundred and fifteen hundred dollars. The building was actually used as a hospital, and it and the whole fifteen acres of land, included in the surveyed boundaries, was kept in 446 charge of an employé of the Hargises. This emplove was instructed to protect the property from trespassers, and to cut the growth thereon for firewood for use of the hospital and inmates, but not to cut wood beyond the surveyed boundaries. Wood was so cut and used during the entire time of the occupancy of the property by the Hargises, a period of more than three years. The proof shows that the possession of Bonifay, as well as that of the Hargises, was taken and held under a claim of ownership of right and title to the premises. The greater part of the land not covered by the buildings and improvements was covered by pine saplings, small trees, and undergrowth-the merchantable timber having previously been cut and removed. We think the evidence fully demonstrates the knowledge of this possession by the defendant J. C. Petterson. The complainant entered into possession a short time after obtaining his deed.
Having stated our conclusions as to the possession of complainant and his predecessors, we will proceed to consider the objections above stated urged by the defendant in bar of the relief sought by the complainant. The first objection which the defendant Pensacola, Gulf, Land and Development Company claims precludes the granting of the relief sought is that of delay in performing his contract and seeking his remedy. Upon this point, it is contended that time was of the essence of the contract. Without setting forth the contract in full, it is sufficient to say that it contains no provision to that effect, and, therefore, time was not of its essence, and cannot be so regarded in a court of equity: Chabot v. Winter Park Co., 34 Fla. 258; 43 Am. St. Rep. 192; Southern Life Ins. etc. Co., v. Cole, 4 Fla. 359. It is also undoubtedly 447 a correct proposition that “while a court of
a equity does not regard time as of the essence of a contract, unless it is so expressly stipulated, yet it will require of one who seeks specific performance of a contract that he shall not be guilty of unreasonable delay": Chabot v. Winter Park Co., 34 Fla. 258; 43 Am. St. Rep. 192.
In this case, we have found from the evidence that the predecessors of the complainant, and to whose equities he succeeded, were in the possession of the premises, with permission of the vendor and after payment of a part of the purchase money, under an assertion and exercise of right. In such a case, the lapse of time does not bar the remedy. Upon this subject, it is said by an eminent author: "In determining what amount of mere delay in bringing his suit will defeat the plaintiff's claim to a specific performance, or, in other words, what lapse of time, after his right of action accrued, will render the demand stale, the rule prevails in equity, as in law, that while the plaintiff is in possession under an assertion and exercise of right, the lapse of time does not prejudice his remedial right. If the vendee, therefore, takes and retains possession of the premises with the vendor's consent, his mere delay in bringing a suit, or even in paying the price, will not prevent him from compelling a conveyance upon & subsequent payment or tender of the amount due, nor will his right to the relief be cut off until the vendor places a limit to the lapse of time by a demand of payment at or before a specified day, and by a notice that the agreement will be rescinded unless the demand is complied with, and the vendee's default thereon. The defendant, in order to avail himself of the plaintiff's delay as a defense, must have performed, or been ready and willing to 448
perform, all the terms of the contract on his own part. Where the contract is substantially executed, the purchaser has obtained possession, and, of course, is vested with an equitable title, but the legal title is yet held by the vendor, the vendee's delay in bringing a suit to compel a conveyance, however long continued, will not defeat his remedy of a specifiec performance, unless, perhaps, the situation of the vendor and his relations to the land have been so altered in the meantime that a specific execution of the agreement will be inequitable”: Pomeroy on Contracts, sec. 404.
In this case, the vendor or his grantees had never made any demand for payment on or before a specified day, and had never given any notice that the agreement would be rescinded unless the demand was complied with. Not only had the complainant's predecessors been in possession, but they had made valuable improvements upon the land. In such a case, where the delay lasted for thirty years, the court said: “Where the purchaser, under an executory contract, enters on, improves, and continues in the possession of the land, the lapse of time is no defense to his bill for specific execution”: Barbour v. Whitlock, 4 T. B. Mon. 180. A similar case, where the delay was not so great, and where the point was likewise decided, is Mason v. Wallace, 4 McLean, 77. Other cases holding similar views of the law are Waters v. Travis, 9 Johns. 450, text 466; New Barbadoes Toll Bridge Co. v. Vreeland, 4 N. J. Eq. 157; Miller v. Bear, 3 Paige, 466; Bruce v. Tilson, 25 N. Y. 194; Crofton v. Ormsby, 2 Schoales & L. 583, text 603; Stretch v. Schenk, 23 Ind. 77. Applying these principles of law to the facts of the case, the conclusion necessarily follows that the 449 complainant was not barred of relief by reason of his delay in seeking it.
There is another reason why the defendant cannot avail itself of complainant's delay in the matter. As we have seen, time was not made of the essence of the contract. While the general rule obtains that a court of equity will specifically enforce a contract for the sale of lands only in cases where the complainant shows himself prompt and eager to perform the contract on his part (Chabot v. Winter Park Co., 31 Fla. 258; 43 Am. St. Rep. 192), yet, under the facts of this case, the defendant is not in a situation to avail itself of the defense of a want of promptness upon the part of the complainant. The defendant does not claim that it was at all times ready and willing to perform the contract on its part. It claims to have known nothing about the contract whatever, it never offered to perform the same or expressed any willingness so to do, or took any steps whatever for that purpose, but, on the contrary, claimed the land absolutely discharged from any equitable title of complainant, and made its defense to the case chiefly upon that ground. “The defendant, in order to avail himself of the plaintiff's delay as a defense, must have performed, or been ready and willing to perform, all the terms of the contract on his own part”: Pomeroy on Contracts, sec. 404, and note 2; Leaird v. Smith, 44 N. Y. 618; Van Campen v. Knight, 63 Barb. 205; 3 Pomeroy's Equity Jurisprudence, sec. 1408, and authorities cited in note 1.
We next examine the question whether the defendant, the Pensacola, Gulf, Land and Development Company, is an innocent purchaser for value without notice of the complainant's equities. The evidence, we 450 think, clearly shows a knowledge and notice of these equities on the part of the defendant J. C. Petterson. J. C. Petterson was, at the time of the conveyance by Emma I. Petterson to the Pensacola, Gulf, Land and Development Company, the president of that corporation. He joined with his wife in the deed, and acted in the transaction in her and his own behalf.
It is admitted on both sides that the land involved once belonged to one C. Dowd. It is also admitted, and we think properly, that all persons deriving any interest in the land from or through said Dowd after his contract to sell to Bonifay, and with notice of such contract, are bound to perform the same to the same extent that Dowd would be bound, if he had still retained the legal title in himself: McRae v. McMinn, 17 Fla. 876; Ward v. Spivey, 18 Fla. 847; Pomeroy on Contracts, sec. 493; 2 Pomeroy's Equity Jurisprudence, sec. 688, and authorities cited in note 4. The question, then, is material whether the defendant corporation, the Pensacola, Gulf, Land and Development Company, when it purchased the land from Mrs. Petterson, had notice of the contract of sale through which arose the equity of the complainant. The complainant claims that the corporation had notice, because the defendant J. C. Petterson had such notice while