Opinion
June 13, 1952.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
Harold Ungerleider, Miami Beach, W.O. Mehrtens and Evans, Mershon, Sawyer, Johnston Simmons, Miami, for appellants.
Thomas Jean Ellis, Turk Newman, Joel P. Newman and Vivian L. Schaeffer, Miami Beach, for appellee.
The motion for leave to file extraordinary petition for rehearing is hereby denied. See 30 F.S.A. Supreme Court Rule 25(e).
However, the Court has reconsidered this case ex mero motu and has concluded to remand the cause for further proceedings.
Counsel for appellants insist there is no showing in the record that Elsie Wegman, appellee herein, was ever in possession of the tract or parcel of land known as the "Bayfront Tract". They contend, therefore, that since our original opinion is predicated upon the theory that the Statute of Frauds, F.S.A. § 725.01, is not a bar to the enforcement of the oral agreement to convey an interest in the subject real property, because Elsie Wegman was in possession thereof and had in part performed the contract, our opinion and judgment must be modified with reference to the parcel of land known and designated as the "Bayfront Tract."
We have reexamined the transcript of testimony and have concluded that the evidence shows Elsie Wegman was in possession of the "Smith Cottages Tract" but that it is not clear whether such possession extended to the "Bayfront Tract." There is evidence which shows that the "Bayfront Tract" was west of the "Smith Cottages Tract" but it is not clear whether these properties were contiguous. Consequently, and in view of the fact that this case was not determined below upon the theory that part performance consisting of rendition of services together with possession of the property to which the contract relates was sufficient to bar the application of the Statute of Frauds but upon the theory of a valid contract to form a partnership, we have decided sua sponte to remand this cause to the lower court with directions to the Chancellor to permit, if request therefor should be made, a reopening of the case for the purpose only of taking additional testimony to determine whether Elsie Wegman was in possession of the "Bayfront Tract" under her agreement with her father or whether her possession of the "Smith Cottages Tract" extended to the "Bayfront Tract" by virtue of such properties being contiguous or for any other valid reason. If further proceedings should be taken in this matter and the Chancellor should determine that Elsie Wegman did not have possession of the "Bayfront Tract" during the period of time within which she was performing her part of the contract, an appropriate modification of the final decree should be made denying relief to her in connection with said "Bayfront Tract."
It is so ordered.
SEBRING, C.J., and TERRELL, THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.