This case is before us on rehearing limited to the consideration of the question as to whether or not the pleadings are sufficient to constitute basis for decree against the land as follows:
"That in order to secure the payment of the sum of $2500.00 complainant should have a lien against all the interests that George H. White at the time of his death had and which J. Frederick E. Wood and Julian E. White as Executors of his last will and testament had on July 10, 1925, in the following real estate: `North 97 ft. of the East 122 ft. of Arpent Lot 41 in the old City of Pensacola' * * * that the said interest in said real estate upon which the lien was so decreed to exist should be sold to satisfy said lien."
An examination of the transcript of the record has been made unduly burdensome by the failure of appellants to index the record so that pertinent documents and matters reflected therein could be readily located by the members of the Court. After a careful perusal of the record, however, we find that there is neither substantial basis in the pleadings nor proof to support that part of the decree above referred to.
In the contract for the sale and purchase of real estate the provision that a part of the purchase price shall be "payable $2500.00 in cash to R.P. Reese, Attorney and Agent for the parties of the first part," is descriptive personae of such attorney and agent and appears to have been so treated by all parties.
The succeeding words, "the receipt of which is hereby acknowledged by the parties of the first part" are in effect a receipt for money which may be rebutted by evidence; and it is not contended that the parties of the first part *Page 111 ever in fact received the amount paid to R.P. Reese or any part of it, or that the parties of the first part otherwise became liable to account for it.
The record shows beyond question that all parties to the transaction considered the $2500.00 delivered by the proposed vendees to R.P. Reese to have been delivered to him as stakeholder for both parties and not as agent of the parties of the first part. Paragraph 3 of the bill of complaint alleges:
"The complainant shows and alleges that at the time of signing said contract he paid over into the hands of the said R.P. Reese the cash payment of Twenty-five Hundred Dollars required thereby to be made, which cash payment the said R.P. Reese has ever since held and yet holds as a trustee for payment over to the sellers if and when they shall become entitled thereto and to the complainant if and when he shall show himself entitled thereto."
The contract referred to provides:
"The parties of the first part agree to sell to the party of the second part, and the party of the second part agrees to purchase from the parties of the first part the following described real estate, situated, lying and being in the City of Pensacola, County of Escambia, State of Florida, to-wit: The North Ninety-seven (97) feet of the East One Hundred and Twenty-two (122) feet of Arpent Lot Forty-one (41) Old City of Pensacola, Florida: for the price of Twenty-five thousand ($25,000.00) Dollars, payable $2500.00 in cash to R.P. Reese, Attorney and Agent for the parties of the first part, the receipt of which is hereby acknowledged by the parties of the first part, $22,500.00 in cash upon delivery of a good warranty deed conveying a good title to the above described property to the party of the second part or his assigns." *Page 112
And it further provides:
"Failure by the party of the second part to complete the purchase within ninety days from the date of this agreement for any reason except defective title, shall cause him to forfeit the $2500.00 deposited and paid herewith. If the title is not good and not made good within a reasonable length of time the $2500.00 is to be returned to the party of the second part upon surrender of abstract of title."
That it was the understanding long after the contract was entered into that R.P. Reese was to hold the $2500.00 to be delivered to the vendees should one condition obtain, and to be delivered to the vendors in event a certain other condition should obtain, is clearly shown by the letter of the complainant, Asher Levin, dated November 15, 1925, and addressed to R.P. Reese, Attorney at Law, Pensacola, in which appears the following paragraph:
"Since more than ninety days have elapsed from the execution of this contract, and since you are not in position to deliver an abstract of title covering this property at this time, I advise you that I hereby allow you, as Attorney for the sellers, until December the 1st, 1925, to present said abstract of title to my attorneys, Messrs. Watson Pasco, for examination, and in the event that you are unable to do so I shall have the option of having you return to me the binder of $2,500.00."
The record shows conclusively that neither of the defendants, Wood or White, nor George H. White, ever received the $2500.00 which was deposited in the hands of R.P. Reese, either to be paid on certain terms to E.L. Reese and wife and Wood and White as Executors of the last will and testament of George H. White under certain conditions, or to be returned to Levin under certain other conditions, and the record further shows that under the *Page 113 terms and conditions of the agreement between the parties neither of the above named defendants ever became entitled to receive this money from the hands of R.P. Reese.
Under such circumstances the property of the parties of the first part should not in equity be subjected to compensate for the payment of the "$2500.00 in cash to R.P. Reese, Attorney and Agent for the parties of the first part."
For the reasons stated, we recede from that part of our former judgment, which affirmed in whole the decree appealed from, and now affirm the decree appealed from except insofar as the same adjudicates a lien on the interest in the property hereinbefore described, and as to that portion of the decree it is reversed.
So ordered.
Reversed in part.
WHITFIELD, C.J., and ELLIS, BROWN and BUFORD, J.J., concur.
TERRELL and BROWN, J.J., dissent.
