Opinion
No. 40828.
January 26, 1972. Rehearing Denied February 28, 1972.
Petition for review from the Fourth District Court.
Lucien C. Proby, Jr., and Edward A. Stern, of Pallot, Silver, Pallot, Stern, Proby Adkins, Miami, and Raphael Steinhardt Law Offices, Miami Beach, for petitioner.
Lee W. Harvath, Jr. and Marshall G. Curran, Jr. of English, McCaughan O'Bryan, Fort Lauderdale, for respondents.
This petition for certiorari presents for review the decision of the Fourth District Court of Appeal reversing the Honorable Joseph S. White as Trial Judge for an alleged abuse of discretion in dismissing the action after he had earlier entered a specific performance judgment. The dismissal was after the respondents (plaintiffs below) failed after 80 days to comply with the requirements of the judgment necessary to carry out its terms for transfer of the property to plaintiffs-vendees. Hoffmann v. Delray Beach Whitehouse Apts., 242 So.2d 769 (4th DCA Fla. 1970). Conflict is shown with the prior decisions of this Court in Chabot v. Winter Park Co., 34 Fla. 258, 15 So. 756 (1894); Daubmyre v. Hunter, 86 Fla. 326, 98 So. 69 (1923); Orlando Realty Board Building Corp. v. Hilpert, 98 Fla. 954, 113 So. 100 (1927); and Greenfield v. Bland, 99 So.2d 727 (2nd DCA Fla. 1958), vesting jurisdiction here. Fla. Const. art. V, § 4, F.S.A.
The trial judge, with an experience on the Florida trial bench spanning a period of almost 30 years, drew a four-page order setting forth the purchase transaction involved and the requirements to be met. Plaintiffs moved to amend the judgment to clarify its terms and, after hearing, the trial judge drew another three-page order. It set forth the time for plaintiffs to tender into the registry of the court the cash down payment and the promissory note and first purchase money mortgage which had been provided in the deposit receipt. Following this, the Order stated:
"At the same time Plaintiffs shall place in the hands of the Clerk a promissory note and a purchase money mortgage for delivery to the Defendant [Appellant]. Such note and mortgage shall be dated as of the date of the institution of this suit and shall be payable at the times and in the amounts with interest fixed by said contract commencing on such date of the institution of this suit; provided, however, there shall be credited on the amount of said note and mortgage all sums which Plaintiffs are required to pay in discharge of the first mortgage now encumbering the property, commencing with the first payment maturing under the terms of Defendant's note and purchase money mortgage and continuing with each installment thereafter until the total sum paid by Plaintiffs on account of the first mortgage now encumbering the property has been credited on such installments." [emphasis ours]
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". . . Upon failure of Plaintiffs (Vendees) to so comply, this cause shall be subject to dismissal and in that case, Court costs shall be taxed against Plaintiffs."
By this September 9, 1969, order, the trial court granted an additional 7 days beyond the 55 days which had already elapsed without compliance from the date of entry of the final judgment on July 15. Upon expiration of the 7 days, defendant moved to dismiss for plaintiffs' noncompliance. The trial judge thereupon dismissed the cause and the Fourth District Court of Appeal reversed such dismissal as an abuse of discretion.
The district court also cited as grounds for its reversal the vendees' (respondents') "offer" to pay instanter at the rehearing on the dismissal. What the attorney said at the conclusion of the rehearing on October 3, 1969 (80 days after final judgment) was:
"I am in a position to do it right now, we represent to your Honor that we have been in a position to pay this mortgage off if we were specifically directed to do so. We are in a position to do it now, and I have a check that I can write." [emphasis ours]
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". . . Tell us to pay it off and we will pay it off."
This was neither a sufficient nor timely legal tender in the circumstances of this case. At this late stage after the court's earlier rulings, and the passage of 80 days' time for compliance, it cannot properly be said that the trial judge abused his discretion. Chabot, supra, held 37 days sufficient for a payment of money.
Gus' Baths v. Lightbown, 101 Fla. 1205, 135 So. 300 (1931); Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929); Jacobs v. Automotive Repair Center, Inc., 137 So.2d 263 (1st DCA Fla. 1962).
Gaskins v. Byrd, 66 Fla. 432, 63 So. 824 (1913).
In a recent Fourth District Court opinion, Glave v. Brandlein, Fla.App., 196 So.2d 780 (1967), the same court in this present certiorari affirmed a judgment denying the relief of specific performance of a real estate contract to the plaintiffs-vendees there. In reviewing the trial court's action, this Fourth District Court stated:
"As a condition precedent to specific performance the seeking purchaser must either pay the contract sum; tender it; establish that he is ready, willing and able to do so; or establish that he has been excused from so doing. It would be an anomaly indeed, under equity principles, for a vendee to ask a court to judicially require a vendor to remedy his defaults and perform his covenants by conveying title to vendee when there is no showing on the part of such vendee that he has paid or tendered the contract price as covenanted or that he is willing and has the ability to do so." [emphasis ours]
The crux of vendees' (respondents') contention is that they "did not know" that they were required to pay an existing $150,000 mortgage from vendor to Home Federal Savings Loan Association of Hollywood, Florida, which had at all times existed on the premises. Vendees take the position that the wording of the final judgment and amended final judgment merely "permitted" them to pay off this $150,000 obligation if they chose to do so, but did not require them to pay it.
The same amended final judgment obtained by vendees which is quoted above, also set forth: "It was stated [referring to the hearing on Motion to Amend] that plaintiffs [respondents] would be expected to discharge the first mortgage now encumbering the property." [emphasis ours]
This alone refutes respondents' contention. The remainder of the record also belies vendees' position that they did not know that they were to pay this mortgage. The record shows that:
[1.] Vendees' amended complaint stated in paragraph 10:
"The plaintiffs hereby tender their willingness to perform and are ready, willing and able to pay the necessary portion of the purchase price stated in the aforesaid deposit receipt agreement in cash to fully satisfy the aforesaid mortgage [$150,000] and to pay the balance of the purchase price in the form of a promissory note and purchase money mortgage payable to the defendant. . . ." [emphasis ours]
This plainly referred to the $150,000 Home Mortgage to be paid by vendees, so that from the very beginning of the lawsuit it is clear that vendees by their own statement were aware that it was necessary to pay off the existing mortgage, as one would normally expect.
[2.] The final judgment recites in regard to this existing mortgage:
"It was shown at the trial that the vendor had arranged with a Miami bank to lend the vendor sufficient money to pay off an existing mortgage on the property. The loan was to be secured by an assignment to the bank of the mortgage which the purchasers were required to give to the vendor under the terms of the contract in question.
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". . . The vendor's attorney testified that he extended the time of closing no later than September 1, 1968, because that is when the bank's commitment expired."
It is thus made clear in the final judgment that the existing first mortgage had to be paid off from the proceeds of the sale, which is not an unusual or unexpected procedure. The basic background of the entire lawsuit was the ever present $150,000 Home Mortgage. Vendor was relying on the September 1 closing date for the very reason that this mortgage had to be paid off then. It went into default when no closing ensued, and vendor has been paying $1,250 a month default interest since September 1, 1969, while waiting for vendees to close and pay off this mortgage. The equities by now had shifted; the trial judge correctly applied the equities by no longer lending his equity powers to aid the vendees under these changed circumstances.
[3.] The judgment directed specific performance and that plaintiffs within 30 days make cash payment:
". . . together with the purchase money note and mortgage described in such contract, bearing date of the institution of this suit and payable with interest according to the terms of such contract; provided, that if Defendant [vendor] has not then removed those encumbrances which Plaintiffs do not assume in and by such contract [the $150,000 Home Federal Mortgage], the amount of such note and mortgage shall be reduced by the sum of such encumbrances."
This language obviously indicates that the amount of the existing mortgage if not paid by vendor (as it was known it could not be) was to be reduced (subtracted) from the first purchase money mortgage required to be given by vendor. (The vendee had offered so to do in its amended complaint.) It is difficult to see how the matter could otherwise be closed. The existing first mortgage had gone into default and of necessity was required to be paid.
[4.] At the August 21, 1969, hearing it was also quite clear to vendees' counsel that it was to be paid off in the following exchange:
"THE COURT: . . . Now, as I recall it, and I may be mistaken, I asked this gentleman here, `Do you expect to pay off the mortgage?' and my recollection is he said, `Yes,' he did.
"MR. CURRAN: Yes, sir."
[5.] Vendees wanted the court's language clarified by amending the final judgment and in its order complying with vendees' request, the court set forth:
"It was stated that Plaintiffs would be expected to discharge the first mortgage now encumbering the property." [emphasis ours]
This was on September 8, 1969; yet vendees try to convince the judge that they had not understood that they were to do this when it came before the court on September 22, when the time for doing so had expired. It is not surprising that the court could not accept such a contention. Neither can we.
It is difficult to see how much clearer it could be stated that vendees were to pay the existing mortgage. Yet vendees say, "But, Your Honor, you did not ORDER us to pay it; you only said we would be EXPECTED to pay off the existing mortgage"!
It is the language following this in the order which vendees now seize upon in claiming that they did not know that they were supposed to pay the mortgage. The order states:
"[T]here shall be credited on the amount of said note and mortgage [first purchase money mortgage to vendor] all sums which Plaintiffs are required to pay in discharge of the first mortgage now encumbering the property. . . ."
This simply comports (by allowing the credit) with the initial sentence in the order that "Plaintiffs would be expected to discharge the first mortgage now encumbering the property."
[6.] Consistent with this same position is the language of the final order dismissing action as follows:
"When plaintiffs brought this suit they committed themselves to take title to the property in question. Thus, they committed themselves to paying off the pre-existing mortgage on the property if defendant failed or refused to do so. Otherwise it would be impossible for them to obtain specific performance in accordance with the prayer of their complaint."
[7.] In the Motion to Dismiss, it is set forth as follows:
"2. Pursuant to a timely motion to amend the judgment aforesaid and at a hearing on said motion on the 21st day of August 1969, the Court orally directed the plaintiffs to discharge a certain existing mortgage in the sum of $150,000 held by the Home Federal Savings Loan of Hollywood, which mortgage is dated May 26, 1966, and recorded in Official Records Book 1380, Page 272, of the Public Records of Palm Beach County, Florida." [emphasis ours]
Vendees dispute that the direction was this clear and insist that they should have been expressly and directly ordered by the court to pay the Home Mortgage.
[8.] There apparently was no doubt in the trial judge's mind about what was meant as reflected in the following colloquy on September 19, 1969, upon vendor's motion to dismiss the cause for vendees' noncompliance:
"THE COURT: . . . I intended that the mortgage be paid off, and I am not sure that that can't be read into this order but maybe it can't because it certainly — the order couldn't possibly be carried out unless it was paid off."
Then at the hearing on Petition for Rehearing:
". . . you were apprised, according to this record, that they weren't going to pay this mortgage off, that you would be expected to discharge it.
"Now with that knowledge, knowing that's the only way in God's world to close this deal, they have you sit there across the table and told you according to this record, that the Plaintiffs would be expected to discharge the first property [mortgage] on the incumbent property. That was something that you had to contemplate as possibly falling on you, and here is a notification to you that it was falling on you.
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"I think that is about all I had to do, and it looks like to me that in the face of the knowledge, the unequivocal statement here that in order to close this deal, Mr. Plaintiff, you were going to have to pay this mortgage, and when you come down there and put in something that doesn't anticipate that, or something that can't possibly be, I don't know what is the next thing to do, what should happen. Just let it lie there indefinitely, the situation lie there indefinitely, because the motion hadn't been made to dismiss it? No way to proceed a step further? . . ."
Also revealing is the colloquy between plaintiffs' (vendees') counsel and the court at the rehearing:
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"MR. CURRAN: I didn't know your Honor had directed us to pay it off, and that was my point.
"THE COURT: I didn't think it was appropriate for me to order you to; I didn't think it was necessary.
They sat across the table and said this mortgage was to be paid off by you, that is what the record shows."
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"MR. CURRAN: Then if we weren't required to do it, my position would be why could you dismiss the action?
"THE COURT: Because you didn't pay it off. You didn't create a situation whereby this transaction could possibly be closed. On the contrary you created a situation by which it couldn't be closed."
And finally:
"THE COURT: I can't see that this thing is not like it should be. I think that you had all the opportunity, and the thing that convinces me is that what you did down there [registry of the court] was an idle gesture. Nothing could possibly be done with this transaction with that tender.
"I am going to deny your motion [for rehearing]."
It is apparent that the patient trial judge had afforded vendees every opportunity to close the transaction and had amended his judgment to comply with vendees' further request and then when there still was noncompliance after 68 days' time and it appeared that vendees were quibbling with the language but still not complying, the judge felt justified in dismissing the action. We cannot disagree with his exercise of discretion in doing so.
Perhaps it became apparent to the trial judge that vendees had a reason for the delays and for not complying. This is reflected in some of the further colloquy at those two hearings when it was revealed that the Home Mortgage in default was requiring $1,250 per month interest payments by vendor so long as vendees did not act. Also, vendees' professed "good faith" to proceed and to pay off the mortgage was made contingent upon no appeal being taken.
The record reflects the following:
"MR. CURRAN: . . . But if there is no appeal, I don't mind telling you what we are going to do. We are going to pay it off, and we won't fight with you over the extra interest.
"THE COURT: Well, I don't see why you haven't paid that mortgage off and taken the land.
"MR. CURRAN: This is our intention if there is no appeal.
"THE COURT: I think you spoke to me one time about being worried about paying this mortgage off and having an appeal taken and having your money tied up." [emphasis ours]
At another point, the same conditional payment — only "if you don't appeal" — again takes place in the record as follows:
"MR. HORTON [Counsel for vendor]: Do you want to take it down [accept the deed] and not dispose of this Home Mortgage?
"MR. CURRAN: We have no objection to paying off the mortgage if you don't appeal." [emphasis ours]
One cannot invoke the extraordinary powers of an equity court to require specific performance and then balk at the court's terms or vacillate with the requirements of the judgment. To do so is to risk the withdrawal of the court's favorable ruling. To deny a trial court of its discretion in these circumstances is not the place of an appellate tribunal. It unduly restricts the trial court and weakens its authority to administer justice on the trial level.
Protestation by vendees that they did not "know" that they were required to pay off the Home Mortgage is also dispelled by the very instruments involved in which the deed and mortgage that they placed in the registry of the court expressly provided that the tendered instruments were a FIRST purchase money mortgage from vendees to vendor. Of course this could not be a first purchase money mortgage unless the existing Home Mortgage were paid off. It is clear throughout the transaction that such was the essential ingredient of any closing in this matter. This was the trial judge's final comment to counsel that nothing could really take place without payment of that mortgage. The court remarked:
"[Addressing Mr. Curran] You haven't given them a first mortgage and that is what your contract calls for."
In the Order Dismissing Action, it is recited:
"When plaintiffs brought this suit they committed themselves to take title to the property in question. Thus, they committed themselves to paying off the pre-existing mortgage on the property if defendant failed or refused to do so. Otherwise it would be impossible for them to obtain specific performance in accordance with the prayer of their complaint.
"Plaintiffs were informed at the hearing on August 21, 1969, that defendant would not discharge the pre-existing mortgage and that plaintiffs would have to discharge it. Plaintiffs were aware that in meeting any required tender the pre-existing mortgage would have to be taken into account in order to close the transaction.
"Plaintiffs have now tendered only sufficient money into the registry of the Court to meet the down payment fixed in the contract, making no provision for discharging the pre-existing mortgage. Likewise, they have ignored the pre-existing mortgage in tendering the purchase money mortgage mentioned in the contract. Obviously, this was a useless and meaningless tender since this procedure makes it impossible to carry out the orders of this Court granting specific performance as prayed for in the complaint."
The able trial judge was eminently correct. The opinion of the Fourth District Court of Appeal is quashed with instructions to remand the cause to the trial court for reinstatement of the Order Dismissing Action.
It is so ordered.
ROBERTS, C.J., and CARLTON, ADKINS, BOYD and DEKLE, JJ., concur.
ERVIN, J., dissents with opinion.
CREWS, Circuit Judge, dissents and concurs with ERVIN, J.
I must dissent. The decision of the District Court of Appeal, Fourth District, is not in conflict with Chabot v. Winter Park Co., 1894, 34 Fla. 258, 15 So. 756; Daubmyre v. Hunter, 1923, 86 Fla. 326, 98 So. 69; Orlando Realty Board Building Corp. v. Hilpert, 1927, 98 Fla. 954, 113 So. 100; Greenfield v. Bland, Fla.App. 1958, 99 So.2d 727, as is hereinafter indicated. This Court, therefore, does not have jurisdiction to consider this case under Article V, Section 4 (2) of the Florida Constitution. The writ of certiorari previously issued should be discharged as improvidently granted.
This action arose out of a real property transaction. According to the contract for sale of the realty, the purchase price was to be $280,000 of which a $10,000 deposit was to be paid when the contract was signed; $60,000 in cash was to be paid at closing, and the remaining $210,000 plus interest was to be paid semiannually over a five-year period. The contract provided:
"The property hereinabove described shall be conveyed by warranty deed free from all liens and encumbrances except those agreed hereby to be assumed . .
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"If the Sellers' title is not marketable or insurable and cannot be made so within a reasonable time after delivery by the Purchasers of the written notice specifying the defects, then, at the option of the Purchasers, the escrow money deposit herein provided shall be returned to the Purchasers on demand and both parties shall be relieved from all obligations hereunder or the defects may be waived and the title taken in its existing condition."
The contract further provided that "the date of closing shall be extended for such reasonable period of time as may be necessary to cure any defects in the title. . . ."
After the contract was signed, the purchasers, Respondents, discovered the property was encumbered by an outstanding first mortgage to Home Federal Savings and Loan Association of Hollywood, Florida, having a principal balance of $150,000. As permitted under the contract, Respondents elected to clear the title and purchase the property. When the seller, Petitioner, indicated it was not willing to continue with the transaction, the purchasers filed a complaint seeking to have the contract specifically enforced against the seller. The trial court found for the purchasers, and the final judgment, signed July 14, 1969:
"ORDERED AND ADJUDGED that within thirty (30) days from this date, Plaintiffs deposit, or cause to be deposited, in the registry of this Court, as the purchase price of the real estate described in the Complaint, $60,000.00 plus interest thereon at the rate of 6 per cent per annum from the date of the institution of this suit to the date of such deposit, together with the purchase money note and mortgage described in such contract, bearing date of the institution of this suit and payable and with interest according to the terms of such contract; provided, that if Defendant has not then removed those encumbrances which Plaintiffs do not assume in and by such contract, the amount of such note and mortgage shall be reduced by the sum of such encumbrances."
After the purchasers tendered into the court's registry $84,073.71 and a primissory note and purchase money mortgage in the amount of $210,000, the trial court, on September 8, 1969, entered an Order on Motion to Amend Judgment which provided in part:
"Within seven (7) days from the date hereof Plaintiffs shall direct the Clerk of this Court to disburse to the Defendant from the funds aforesaid the total amount of the cash payment called for on the day of closing by the contract in question, plus interest thereon at 6 per cent per annum from the date of the institution of this suit to the date of such disbursement. At the same time Plaintiffs shall place in the hands of the Clerk a promissory note and a purchase money mortgage for delivery to the Defendant. Such note and mortgage shall be dated as of the date of the institution of this suit and shall be payable at the times and in the amounts with interest fixed by said contract commencing on such date of the institution of this suit; provided, however, there shall be credited on the amount of said note and mortgage all sums which Plaintiffs are required to pay in discharge of the first mortgage now encumbering the property, commencing with the first payment maturing under the terms of Defendant's note and purchase money mortgage and continuing with each installment thereafter until the total sum paid by Plaintiffs on account of the first mortgage now encumbering the property has been credited on such installments." (Emphasis supplied.)
When the purchasers did not discharge the Home Federal mortgage within seven days of the entry of the Order on Motion to Amend Judgment, the trial court on September 22, 1969 dismissed the action. On appeal, the District Court of Appeal, Fourth District, reversed. That court found:
"The problem arose because of a difference of view as to the proper interpretation to be placed on the . . . [emphasized language in the] amended judgment. [Quoted above.] The plaintiffs took the position that such amended judgment did not require them to pay the mortgage held by Home Federal, but merely permitted them to do so at their option in which event they would receive credit on the purchase money note and mortgage in the manner specified in the court's order. Consequently, the vendees paid no part of the $150,000 due on the outstanding mortgage, and having already theretofore delivered to the clerk a note and mortgage for $210,000 as required by the contract and the original judgment, they deemed themselves in compliance with the amended judgment when they authorized the clerk to disburse the cash deposit to the vendor. When the time limit for performance had expired, the vendor moved for an order dismissing the suit on the grounds that the vendees had not satisfied the $150,000 mortgage as required by the amended final judgment. At hearing on this motion the court recognized that while the amended judgment did not expressly order the vendees to satisfy the $150,000 mortgage, it determined that the vendees should have understood the necessity of doing so since the vendor had announced prior to the amended judgment being entered that it either could not or would not satisfy such mortgage. The court found the vendees to be in noncompliance with the intent of the amended judgment and notwithstanding the vendees' offer to pay the Home Federal mortgage in full instanter in order to comply with the court's interpretation of the requirements of the amended judgment, the court dismissed the suit and taxed costs against the plaintiffs.
"The final judgment in this case determined that the plaintiffs were entitled to have the contract specifically enforced against the defendant. The contract required the defendant to convey the property free of the encumbrance of the Home Federal mortgage. The amended final judgment did not expressly direct the plaintiffs to satisfy such mortgage as a condition precedent to obtaining a conveyance of the property, although it is clear that as a practical matter this is the only means by which the vendees can acquire from the vendor a title unencumbered by such mortgage. The order of dismissal has the effect, however, of depriving the plaintiffs of the benefit of the final judgment because of their failure to do that which the court had not expressly directed them to do and which was clearly a contractual obligation of the defendant vendor. In view of the plaintiffs' off[er] to perform instanter upon the court's clarifying the intent of the amended final judgment, it is our view that the court abused its discretion in entering the order of dismissal."
The District Court remanded the cause to the trial court, which was directed to enter an order giving the purchasers "a reasonable time to satisfy the outstanding Home Federal mortgage on the property, and otherwise fully comply with the conditions set forth in the amended final judgment so as to entitle them to a conveyance, failing which the court may then in its discretion enter a dismissal order similar to the one here appealed."
The cases cited by Petitioner and by the majority of this Court in its Opinion are not in conflict with this decision of the Fourth District Court of Appeal; they do not deal with the issue raised by the case sub judice, i.e., whether the trial judge abused his discretion when, after granting the purchasers' request for specific performance of the contract, he dismissed the action after the purchasers failed to discharge the pre-existing mortgage.
In Chabot v. Winter Park Co., supra, a seller and buyer contracted in 1885 to sell and purchase a certain lot for $100 down with the balance of $150 due in a year. The balance was not paid when it became due, and on June 14, 1888, the seller sent the purchaser a registered letter which stated that "if the balance due, as shown on the statement, is not fully paid by or before July 20, 1888, the aforesaid agreement will be null and void. . . ." Although it was received, the letter was never acknowledged by the purchaser. On July 20, 1888, the seller sold the lot to a third party. On November 16, 1889, sixteen months later, the purchaser tendered the amount due and demanded a deed. The seller refused and the purchaser filed a suit seeking specific performance. The trial court dismissed the action. This Court upheld the dismissal on two grounds: (1) that the time limitation imposed by the seller on the buyer was reasonable "under all the circumstances of the case," and (2) that the purchaser did not file the action within a reasonable time.
Because this Court in Chabot, called reasonable thirty-six days' notice to the buyer to comply with the contract to purchase or lose all rights under it, Petitioner contends the trial court in this case acted within its discretion in dismissing the action when Respondents did not satisfy the Home Federal mortgage within the time limits set forth in the final judgment and the amended final judgment. The dismissal order was entered seventy days after the entry of the final judgment, which had a thirty-day time limit in which to comply with its mandate, and fourteen days following the entry of the amended final judgment, which set a seven-day time limit for compliance. In reversing the trial judge's dismissal order, the District Court, according to Petitioner, rendered a decision in conflict with Chabot.
Such a position is untenable. Whether or not the trial judge's time limitation was reasonable is immaterial to the District Court's decision. It seems clear that court reversed the trial court's dismissal order because it was an unreasonable abuse of discretion in light of the amended final judgment's ambiguous statement regarding Respondents' duty to discharge the mortgage. There is nothing in the record to show this decision conflicts with Chabot. Furthermore, I feel the District Court decision is correct. That the judgment was ambiguous is obvious. It does not order Respondents to immediately discharge the mortgage; in fact, it implies immediate payment need not be made. That, and the fact Respondents attempted to comply with the order by tendering into the court's registry $84,073.71 and a promissory note and purchase money mortgage in the amount of $210,000, and offered at the hearing on the motion to dismiss to immediately discharge the mortgage if so instructed by the trial court, supports the District Court's conclusion that the trial court abused its discretion in entering the dismissal order.
The remaining three cases cited for conflict, Daubmyre v. Hunter, Orlando Realty Board Building Corp. v. Hilpert, and Greenfield v. Bland, all supra, also are not at odds with the District Court's decision in this case. They merely state the rule that "the enforcement of a specific execution of a contract is not a matter of right in either party, but . . . it is a matter of sound discretion in the court and should be granted only in cases where such decree would be strictly equitable. . . ." Orlando Realty Board Building Corp. v. Hilpert, 113 So. at 101.
In sum, it appears the District Court in correcting what the record below disclosed to be a patent abuse of discretion, created no conflict. It lay within its appellate province to correct the abuse and we have no constitutional authority to interfere.
Looking to the merits, the equities of the case lie with Respondents, the purchasers. The vendors created the problem by contracting to sell unencumbered property but on which the purchasers discovered there was a $150,000 mortgage. When the purchasers had to resort to a specific performance action to enforce the contract there was involved, of course, the mechanics of how to clear the mortgage. Merely because purchasers sought to obtain a clarification from the trial judge as to an obvious ambiguity in his order concerning when and how the $150,000 mortgage was to be satisfied by them, he summarily decreed they had not complied with the order's deadline and dismissed their action although they agreed to satisfy the mortgage instanter according to his interpretation of his order. This was clearly an abuse inasmuch as purchasers were reasonably seeking clarification of the order — and, after all, vendors had created the problem in the first place by purporting to sell unencumbered property and had agreed the "title [could be taken by purchasers] in its existing condition."
This rigid, unremitting application of the seven days' grace order which denied purchasers the benefit of their contractual bargain merely because they sought a clarification, cried out for appellate correction to relieve against the harshness of the trial court's summary action. We have no equitable basis upon which to intervene in this case where the equities so clearly lie with the purchasers.
I would discharge the writ as having been improvidently granted.
CREWS, Circuit Judge, concurs.