General Development Corp. v. Kirk

• Citation: 251 So.2d 284
• Decision Date: 14 July 1971
• Docket Number: No. 70--184,70--184
• Parties: GENERAL DEVELOPMENT CORPORATION, a Delaware Corporation, Appellant, v. Claude KIRK, Jr., et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 284

251 So.2d 284

GENERAL DEVELOPMENT CORPORATION, a Delaware Corporation, Appellant, v. Claude KIRK, Jr., et al., Appellees.

No. 70--184.

District Court of Appeal of Florida, Second District.

July 14, 1971.

Rehearing Denied Sept. 3, 1971.

Charles J. Cheves, Jr., of Wotitzky, Wotitzky & Cheves, Punta Gorda, and Hazen & Isphording, Venice, for appellant.

Wilson & Wilson, Sarasota, for appellees.

MANN, Judge.

It all began before the War, in 1850. A.U.S. Government surveyor plotting the west shore of Charlotte Harbor at the mouth of the Myakka River confused several sections with the ones immediately north. Thus, his section 11 looks like the shore line in what is actually section 2. He did not show any of section 2 on the river, but it is there.

In 1899, William Wood, perhaps relying on the incorrectly numbered survey, deeded a parcel commencing at a point which bears South 4 15 East from the center of the foot of a cattle dock, in section 11, containing 'twenty acres, no more nor no less.'

From 1913 to 1933, tax certificates were issued for this property, and eventually the State acquired title under the Murphy Act. In 1945, Fern and Beulah Conway applied for a deed, and the Trustees of the Internal Improvement Fund issued it: twenty acres, in section 11:

                                                                                       Amount
                No.     Date     Description    Sec.       Tp.       Rg.       Ac.      Rec'd
                  24  1913 Beg at a point which bears 40 deg E. 257 ft from
                      center of foot of cattle dock & run W from said point
                 869  to W bdry of lot 2 then N 300 ft then E to a point on
                1933  Myakka River at highwater mark then SE'orly
                      meandering River to beg
                                                 11         41        21        20     $23.70
                

In 1956, General Development's predecessor in title, Florida West Coast Land Company, as uplands riparian owner, applied to the Trustees to purchase approximately 337 acres of sovereignty land lying east of the government survey meander line, including Cattle Dock Point. The Conways protested. They had discovered that Cattle Dock Point was within section 2, and asked for a deed to the land which had been misdescribed as lying in section 11.

The Conways were in possession of a tract around the old cattle dock site, and the staff of the Trustees proposed a corrective deed to the Conways, the Conways discontinued protesting the sale to Florida West Coast Land Company on condition that they first got their title straightened out, and everybody seemed happy when the Conways got their twenty acres and Florida West Coast Land Company got the remaining 317 acres. Several descriptions were proposed, and apparently no actual survey was made to get an accurate one. The Conways got a Corrective deed to:

                                                                                         Amount
                No.   Date  Description     Sec.        Tp.         Rg.         Ac.      Rec'd
                  24  1913  Begin at a point which bears South 4  15' E
                              257
                            ft. from center of foot of Cattle dock in Sec. 2,
                 869  1933  T.41S R. 21 E., and run west from said point to
                            the West Boundary of Sec. 2; Then North to
                            the north boundary of SW of said section 2;
                            Then East to point on Myakka River at high
                            water mark of said river; Then Southeasterly
                            meandering river to point E. of Begin;
                            Then W. to Begin.                                    20
                                             2           41          21         more     $23.70
                                                                                 or
                                                                               less.
                

The description used in the deed was later shown to cover not twenty but 57.8 acres.

General Development sought to reform the deed given by the Trustees to the Conways. The trial judge thought that the corporation lacked standing to reform the Conway deed and granted summary judgment. We disagree.

Not much that is written about standing is worth reading. There are cases which lead one to believe that the later grantee lacks standing to attack a deed to an earlier grantee from a common grantor. A preoccupation with privity of estate led the Supreme Court of Georgia to hold that 'the grantee in the second deed cannot maintain a suit in equity to reform the first deed, although the description may be incorrect and be due to the mutual mistake of the parties.' Garlington v. Blount, 1917, 146 Ga. 527, 91 S.E. 553; Hilton v. Hilton, 1947, 202 Ga. 53, 41 S.E.2d 880. In Rawson v. Brosnan, 1939, 187 Ga. 624, 1 S.E.2d 423, the same court deals with the problem as if it is not one of 'standing,' but of right, and adheres to Garlington. The second grantee's quarrel is said to be with his grantor. That points up the difficulty here: the uplands riparian owner has a prior right to purchase, but the Trustees of the Internal Improvement Fund don't have to sell. ¹ We think the Georgia cases are unsound. In Taylor v. Peterson, Colo.1956, 133 Colo. 218, 293 P.2d 297, the Supreme Court of Colorado adopts an ambiguous, but similar position, discussing both standing--as if it doesn't exist--and the substantive right, as if after plenary hearing it were not proved, without apparent recognition of the inconsistency.

We think a more reasonable view of standing is found in Jones v. McNealy, 1904, 139 Ala. 378, 35 So. 1022; Williams v. Hebbard, 1939, 33 Cal.App.2d 686, 92 P.2d 657; Kowatch v. Darnell, 1958, 354 Mich. 197, 92 N.W.2d 342; Polhamus v. Hines, Sup.Ct.1926, 128 Misc. 299, 218 N.Y.S. 401 (parties 'sufficiently in privity'); and Houlihan v. Murphy, 1962, 93 R.I. 499, 177 A.2d 192 (no discussion of standing, but action allowed.) See also Annotation, 79 A.L.R.2d 1180.

It is not 'privity' but a legitimate interest warranting invocation of the judicial power of the state which ought to determine standing to sue. Our courts have permitted taxpayers to challenge legislation where the plaintiff-taxpayer has a direct interest, as for example in the expenditure of public funds, ² or upon a showing of injury or prejudice to personal or property rights. ³ The courts have denied standing where the party's interest has not vested ⁴ or is too slight ⁵ or is clearly not affected by the legislation. ⁶

Standing is, in the final analysis, that sufficient interest in the outcome of litigation which will warrant the court's entertaining it. It is beyond doubt that standing is, in most states, no longer determined by first determining some abstract question such as 'privity.' In this case it is clear that General Development reasonably contends that the extent of the property conveyed to the Conways determined the extent of that conveyed to Florida West Coast Land Company, its predecessor in title. We think the courts of Florida should be open to the presentation of such a contention as this. ⁷

Appellees next contend that any error in the corrective deed has been cured by Fla.Stat. 253.12(8) (F.S.A., 1969). This is a curative statute of a type generally described by Professor Day in his article, Curative Acts and Limitations Act...