Battey v. Battey
| Decision Date | 03 August 1926 |
| Citation | 109 So. 584,92 Fla. 512 |
| Parties | BATTEY et al. v. BATTEY. |
| Court | Florida Supreme Court |
EnBanc.
Suit by Robert Battey against Henry H. Battey and others for reformation of a deed. From an order overruling a demurrer to the complaint, defendants appeal.
Affirmed.
Syllabus by the Court
Where bill makes any case for relief, and demurrer is directed to whole bill, or where certain grounds of demurrer are directed to bill in its entirety and others to only part of bill demurrer will be overruled. Where the bill makes any case for equitable relief, and the demurrer filed thereto is directed to the whole bill, or where certain grounds of the demurrer are directed to the bill in its entirety and others to only a part of the bill, the demurrer will be overruled.
Where on sale of several parcels of land, by inadvertence part is omitted from deed, and purchase price for all is paid, case for reformation is made out. Where a party agrees to buy, and another to sell, several parcels of land for a valuable consideration, and a deed is executed in pursuance of said contract, and by inadvertence in describing the property a part contracted to be sold is omitted therefrom, and the purchase price for all the tracts has been paid, a case for reformation of the deed is clearly made out.
Appeal from Circuit Court, Lee County; George W Whitehurst, judge.
J. Bowers Campbell, of Ft. Myers, and Treadwell & Treadwell, of Arcadia, for appellants.
Cyrus Q. Stewart, of Ft. Myers, for appellee.
This is an appeal from an order of the circuit judge in and for Lee county, Fla., overruling a demurrer to the bill.
The bill, in substance, alleges that one William C. Battey, a bachelor, died intestate, seised and possessed of certain lands in Lee county, Fla., leaving as his sole heir at law his mother, Martha B. Battey; that in December, 1917, Martha B. Battey entered into an agreement to sell to appellee all of the lands of the estate of William C. Battey, deceased, in Lee county, for the sum of $4,000, and on the 10th of January, 1918, executed a deed to appellee intending to convey all of the lands in said county belonging to said estate; that a part of the land purchased was through the mutual mistake of both parties inadvertently omitted from the deed; that in February of 1922 Martha B. Battey died, leaving surviving her appellants in this cause; that as soon as the omission of said lands from the deed was discovered he made demand on defendants (appellants here) to correct the error; that he had had the supervision of the property, paid the taxes thereon, and has been recognized by defendants as the owner of all of the lands belonging to said estate.
The demurrer filed to test the sufficiency of the bill is directed to the bill as a whole.
It has been held by this court that, when a demurrer is directed to the entire bill, if the bill contains any equity, the demurrer should be overruled.
'In passing upon a demurrer to the whole bill in a suit in equity, every presumption is against the bill, but it is also true that such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true and a demurrer to the whole bill should be...
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