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Thoelke v. Morrison - 172 So. 2d 604 (Fla. Dist. Ct. App. 1965)


In determining what amount of mere delay in bringing his suit will defeat the plaintiff's claim to a specific performance; or what lapse of time, after his right of action accrued, will render the demand stale, the rule is that while the plaintiff is in possession under an assertion and exercise of right, the lapse of time does not prejudice his remedial right. The defendant, in order to avail himself of the plaintiff's delay as a defense, must have performed, or been ready and willing to perform, all the terms of the contract on his own part.


Plaintiff landowners filed a suit to quite title against defendant vendees. The former executed a contract to sell certain unimproved real estate to appellee contract vendees. After accepting the vendees' deposit check and mailing the executed contract to the vendees but before the contract was actually delivered, the landowners called the vendees' attorney attempting to cancel the transaction. The attorney refused and delivered the contract to vendees, who then duly recorded it in the public records. Four years went by, during which period the vendees paid real estate taxes on the property. Defendants counterclaimed for specific performance and the trial court ruled in their favor. Plaintiff original landowners appealed.


Was the original landowners' action to quiet title barred by laches?




The court affirmed dismissal of the plaintiff landowners' suit to quiet title and grant of summary judgment to defendant contract vendees on their counterclaim for specific performance. The four-year delay between execution of the contract and assertion of the counterclaim was not attributable to the vendees and plaintiff had never performed nor offered to perform, which they had to do to avail themselves of a laches defense.

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