May v. Holley

Decision Date17 June 1952
Citation59 So.2d 636
PartiesMAY v. HOLLEY et al.
CourtFlorida Supreme Court

J. U. Gillespie, New Smyrna, for appellant.

Hull, Landis, Graham & French and J. Compton French, DeLand, for appellees.

TAYLOR, Associate Justice.

Plaintiff below, appellant here, filed his second amended complaint seeking a declaratory judgment, based on the following facts:

In 1938 defendants owned two adjoining lots in the City of New Smyrna Beach and sold one of them to the City of New Smyrna Beach. In 1941 the City conveyed this property to T. W. Bush who sold it to plaintiff in 1947. Plaintiff caused a survey to be made and discovered that a building previously thought to be on the lot retained by defendants actually extended some four feet seven inches onto the lot which defendants had sold. Apparently this fact was not known by defendants or any person in plaintiff's chain of title until 1947 when the survey was made. Defendants have been in possession of the building since the sale of the lot and collected and enjoyed the rents and profits of the building. Plaintiff's lot, except for the encroachment, is vacant and unimproved.

The prayer of the complaint is for a judgment determining plaintiff's title to and right to demolish the building to the extent of the encroachment and an accounting for rents.

A motion to dismiss the complaint on various grounds was filed. This motion raises the question of the propriety of the remedy, asserts that the complaint shows laches and also asserts that the present complaint is a departure from the prior complaint.

The motion to dismiss was granted 'with prejudice.' On petition for rehearing plaintiff asked for a modification of the order of dismissal by elimination of the words 'with prejudice.' This petition was denied and plaintiff has appealed.

The decree of the lower court left counsel and this court entirely in the dark as to the grounds upon which the bill was dismissed. This should be avoided whenever possible. When a bill is attacked upon several grounds some of which go to the real merits of the controversy and some to jurisdictional or procedureal question, the parties have a right to know the reasons which motivated the action of the courts.

As used in the order being reviewed the words 'with prejudice' might mean that the court determined that the plaintiff had no enforceable rights with respect to the building in question, as appellee construes it, or they might merely constitute an adjudication that plaintiff had not presented a case coming within the statute authorizing declaratory relief.

It is clear that, if the allegations of the bill are true, plaintiff's predecessor in titile had a cause of action against defendants immediately after the delivery of defendants' deed to the City of New Smyrna Beach. Even at that time the nature of the right and the appropriate remedy are none too clear and are somewhat dependent upon the position taken by defendants. Ordinarily a simple possessory action is sufficient to enable a vendee to recover possession from the vendor. But when, as here, it is quite apparent that a mistake exists in that a deed conveys a part of a building that was not thought by either party to be on the land conveyed, a different situation is presented. The mistake is of such a nature that the possibility of rescission is immediately suggested. But a purchaser has no right to rescind because he has obtained more than he bargained for. When the vendor takes no action is the purchaser to be required to resort to a possessory action solely to force the vendor to institute the suit that will almost inevitably follow? At common law he probably would. Plaintiff contends that this is just the kind of situation that the declaratory judgment act was designed to relieve.

The facts before us disclose other complications. Plaintiff is the remote grantee of defendants' original vendee. A vendor's possession after conveyance is ordinarily subservient to the title conveyed. 2 C.J.S., Adverse Possession, § 95, p. 652, 2 Am.Jur. 818, Adverse Possession, § 47. This possession is now adverse to plaintiff. At what time it became adverse to plaintiff's claim of title we cannot say.

That is important in determining the rights of the parties. See Sarasota-Fruitville Drainage Dist. v. All Lands, etc., 157 Fla. 207, 25 So.2d 498.

If defendants' intention was to claim only to the true boundary of the land retained by them they may have acquired no rights by adverse possession. Kilgore v. Leary, 131 Fla. 715, 180 So. 35.

Had plaintiff resorted to ejectment he would have been confronted with a serious question as to parties plaintiff. If the possession became adverse during the time the City of New Smyrna Beach owned the lot now owned by plaintiff the statute has run and plaintiff has no title. If defendants' possession became adverse during the ownership of the lot by Bush (plaintiff immediate grantor) the suit should be by Bush for the use of plaintiff. But if the possession became adverse since plaintiff acquired his deed the suit should be in the name of plaintiff. We do not know and we cannot say that plaintiff knows what the defendants will contend or the evidence develop as to these matters. Certainly there was no admission by the complaint sufficient to show the running of the statute of limitations against plaintiff. Equity follows the law and, unless unusual circumstances showing an estoppel or waiver are disclosed, will not hold possession of less than seven years to ripen into title to real estate....

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144 cases
  • Reinish v. Clark, 1D98-3973.
    • United States
    • Florida District Court of Appeals
    • 20 Julio 2000
    ...These elements are necessary as being judicial in nature and therefore within the constitutional powers of the courts. May v. Holley, 59 So.2d 636, 639 (Fla. 1952); Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991). The Declaratory Judgments Act is "substantive and remedial," with a purpose "t......
  • Bradsheer v. Dept. of Highway Safety
    • United States
    • Florida District Court of Appeals
    • 25 Septiembre 2009
    ...the parties and an actual, present need for the declaration"). 6. The standard for declaratory judgment, set forth in May v. Holley, 59 So.2d 636, 639 (Fla. 1952), and reaffirmed by Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.1991), Before any proceeding for declaratory relief should be ......
  • Martinez v. Scanlan
    • United States
    • Florida Supreme Court
    • 6 Junio 1991
    ...the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts. May v. Holley, 59 So.2d 636, 639 (Fla.1952) (emphasis added). Accord Williams v. Howard, 329 So.2d 277 (Fla.1976); Bryant v. Gray, 70 So.2d 581 (Fla.1954). Thus, although a......
  • Nationwide Mut. v. Ft. Myers Total Rehab Center
    • United States
    • U.S. District Court — Middle District of Florida
    • 13 Agosto 2009
    ...Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla.1995) (citing Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla.1991) (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952))). "Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instanc......
  • Request a trial to view additional results
1 books & journal articles
  • Procedural remedies
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • 1 Abril 2022
    ...821 (Fla. 1976), receded from on other grounds by Higgins v. State Farm Fire and Cas. Co ., 894 So.2d 5 (Fla. 2004). 8. May v. Holley , 59 So.2d 636 (Fla. 1952), same case , 75 So.2d 696 (Fla. 1954). §17:30.1.1 Elements of Cause of Action — 1st DCA The Florida Supreme Court explained: This ......

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