Bridges v. Heimburger

360 So.2d 929 (1978)

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Nature of the Case

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Facts

Ds owned the lot. In 1967 they agreed to sell this and other lots to one Hugh H. Moore. Through mutual error, the grantee in the deed was Moore Homes, Inc. but the purchase money deed of trust was executed by Moore individually. Moore failed to make payment. Ds foreclosed in 1968 and repurchased at the foreclosure sale. The legal title remained in Moore Homes, Inc. Ds were not aware of the error and it was not discovered until 1974. In 1969 D conveyed this lot by general warranty deed to Doyle Homes, Inc. Doyle Homes, Inc. constructed a home on the lot and in 1970 conveyed by general warranty deed to P and his wife. On the same day, Ps executed a deed of trust securing an installment note in the principal sum of $30,250. Heimburger later testified that he paid $200 at closing, so apparently, $30,450 represented the total purchase price of the house and lot including closing costs. In February 1974 P contracted to sell the house for $36,500. P would have netted $3,493.81. from the sale. The title defect was discovered in April 1974, just before the scheduled closing, and the sale was not completed. P employed an attorney and paid him a fee of $1250. P filed a complaint against Doyle Homes, Inc. and Ds. Ds filed a demurrer which was overruled, and then filed their answer. Doyle Homes, Inc. did not answer or appear. In November 1974 a quit-claim deed was executed by Moore Homes, Inc. and Hugh H. Moore individually to Doyle Homes, Inc., thus curing the defect in title. P's possession was never disturbed or threatened. P rented the house for a time and collected a net rental of $2600 but made no further mortgage payments. P made no further serious effort to sell the house. P's suit for damages could not have affected the sale, rental, or occupancy of the property, and after November 1974 there was no title problem. In September 1975 the property was sold at foreclosure for $33,391, the total then owing under the deed of trust. A money judgment was entered against Doyle Homes, Inc., and Ds in the amount of $3,493.81 damages plus a $1250 attorney fee and court costs. Ds appealed.