Opinion
No. 72-711.
May 29, 1973.
Appeal from the Circuit Court for Dade County, James W. Kehoe, J.
Abney Wittling, Miami, for appellant.
Sinclair, Louis, Sand Siegel, Edward C. Vining, Jr. and R.M. MacArthur, Miami, for appellees.
Before PEARSON, CHARLES CARROLL and HAVERFIELD, JJ.
Plaintiff-appellant seeks review of the lower court's final judgment entered in favor of defendant in a suit to impress a constructive trust on certain real property.
Appellant, James E. Ament, alleged that in June 1967, the appellees James Terry Ament and his wife, Ruth (appellant's son and daughter-in-law), requested a $5,000 loan for the purchase of a home. He further alleged that in exchange for the loan, appellees agreed to give appellant a note secured by a mortgage on the house. On July 1, 1967 appellant sent a $5,000 cashier's check, payable to "James T. Ament", to his son who immediately cashed it. On July 6, 1967 appellees purchased the house and took title jointly. Nevertheless, they never executed the note and the mortgage even though allegedly requested to on many occasions by the appellant. Appellant did receive two (2) $50 checks signed by appellee, Ruth Ament; however, there was disputed testimony as to whether these were payments on the $5,000 loan or another unrelated $100 loan. In April 1969, Ruth and James were divorced and as part of the property settlement, James executed a quitclaim deed to Ruth who thereby was given a fee simple title to the home. On August 6, 1970 appellant filed suit to establish and impress a constructive trust on the subject property. The court found in favor of appellee Ruth Ament but against appellee James T. Ament in the amount of $5,000. This appeal followed.
Appellant contends that it was error for the lower court not to have impressed a constructive trust on the subject property.
It is well established that the court is without authority to interfere with a final decree of a chancellor if there is substantial evidence in the record to sustain the findings and conclusions of fact expressed in the decree. 2 Fla.Jur. Appeals § 347 (1963). This statement is more sound where, as in the case sub judice, the trial court has had the opportunity to hear the testimony of the witnesses and observe their demeanor and conduct, elements which may affect the degree of credibility which should be accorded to their testimony. Cole v. Cole, Fla.App. 1961, 130 So.2d 126.
It follows then that after a review of the record and no abuse of discretion having been made to appear, the judgment appealed must be and hereby is affirmed.
Affirmed.
Under the law of this state relating to equitable liens, in my opinion the plaintiff-appellant was clearly entitled to an equitable lien based on the circumstances revealed by the evidence in this case. I therefore respectfully dissent from the majority's affirmance of the portion of the trial court's judgment whereby it was held that the plaintiff was not entitled to an equitable lien on the residence property purchased by the defendants with aid of $5,000 advanced therefor by the plaintiff, who at the outset was promised a second mortgage as security, with repeated assurances thereafter that the promised note and second mortgage would be supplied. See Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A.L.R. 1409; Imler Earthmovers, Inc. v. Schatten, Fla.App. 1970, 240 So.2d 76; Folsum v. Farmers' Bank of Vero Beach, 102 Fla. 899, 136 So. 524; Hullum v. Bre-Lew Corporation, Fla. 1957, 93 So.2d 727; Gulf Shore Dredging Co. v. Ingram, Fla.App. 1966, 193 So.2d 232; 21 Fla.Jur., Liens § 7; 12 Fla.Jur., Equity § 52.
When the defendant couple purchased the residence, essential to its acquisition by them was the $5,000 supplied by the plaintiff, with promise that his advance to them would be evidenced by a note payable in three years and secured by a second mortgage on the premises. After stalling or "procrastinating" for most of that three year period, but with repeated assurances that the mortgage would be made, the couple who sought and received the advance could not defeat the right of the plaintiff to an equitable lien (in place of the mortgage) by the circumstance or device of transfer by one of the defendants of his or her interest in the property to the other.