Hancoy Holding Co. v. Lambright

• Decision Date: 06 April 1931
• Citation: Hancoy Holding Co. v. Lambright, 101 Fla. 128, 133 So. 631 (Fla. 1931)
• Parties: HANCOY HOLDING CO. v. LAMBRIGHT.
• Court: Florida Supreme Court

133 So. 631

101 Fla. 128

HANCOY HOLDING CO. v. LAMBRIGHT.

Florida Supreme Court

April 6, 1931

Commissioners' Decision.

Suit by the Hancoy Holding Company against S. Glenn Lambright, also known as Glenn Lambright. From an adverse decree, complainant appeals.

Affirmed.

Syllabus by the Court.

SYLLABUS

A cross-bill or answer designed for affirmative relief by way of foreclosure should set forth the cause of action and conform to other essentials of procedure with the same exactness employed in an original bill, though the suit arose out of the same transaction.

Where the mistake complained of by a purchaser of land results from the want of that degree of care and diligence which would be exercised by persons of reasonable prudence under the same circumstances, equity will not relieve against it.

A misrepresentation by a vendor to be a ground for a rescission of a contract must be in reference to some material thing unknown to the vendee, either from not having examined, or from want of opportunity to be informed, or from entire confidence reposed in the vendor.

If after a representation of fact however positive, the party to whom it was made institutes an inquiry for himself and actually learns the real facts, he cannot claim to have relied upon the misrepresentation and to have been misled by it.

In construing a deed conveying lands and the maps referred to in describing the lands, the nature, origin, and purpose of the map, the position of the contracting parties, and the circumstances under which they acted, should be considered and the language used should be interpreted in the light of all the pertinent circumstances so as to give effect to the intent of the parties, even if an erroneous part of the description has to be disregarded in effectuating the general intent of the conveyance.

Where a purchaser of real estate is shown to have inspected the property before the purchase with every opportunity to make measurements of the frontage, also later, before consummating the purchase, by accepting a warranty deed describing the property without reference to footage, paid the purchase price with cash and a purchase price mortgage and gone into possession for some time, cannot as a rule later come into equity and procure a rescission and cancellation of the entire transaction because of an alleged shortage which he had every opportunity to know about before consummating the purchase.

Generally a deed to land which is in the adverse possession of another is void as against such adverse claimant, but a different rule applies in cases of mere encroachments resulting from a mistake as to boundary lines and where the instrument involved is not a mere executory contract of purchase but an executed warranty deed.

Where the purchaser goes into possession under a warranty deed, he cannot before eviction obtain the aid of a court of equity to rescind the contract and a return of the purchase money in the absence of fraud and where an adequate remedy is provided at law.

Where both pleadings and evidence were amply sufficient to sustain findings of general master and decree of chancellor, decree will be affirmed, in accordance with rule that, whether chancellor's decree be based on testimony taken before him or before master appointed by him, his conclusion on facts will not be disturbed, unless it clearly appears to be erroneous.

Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

Price, Price, Kehoe & Kassewitz, of Miami, for appellant.

Kurtz & Reed, of Miami, for appellee.

OPINION

ANDREWS C.

Appellant as complainant below filed its bill against appellee, a widow, as defendant below for the purpose of rescinding a real estate purchase made in December, 1925, in the city of Miami by which bill of sought to reconvey city of Miami by which bill it sought to reconvey canceled a purchase-money mortgage and notes given by complainant in the amount of $120,000, and to recover $30,000 paid in cash to defendant by complainant as part of the purchase price. The bill prays that in default of such repayment, an accounting be had and complainant be decreed to have a lien upon said premises for the amount found to be due it upon such accounting and that such lien be foreclosed and a sale of said property be made to satisfy the said lien.

As grounds for such relief, the bill alleges that respondent misrepresented the dimensions of the lot in question to complainant as to depth and frontage, in that the receipt for the binder payment described the property as 'Lot 2 Block 1 Rickmer's Subdivision of Dade County, Florida, located bet. 13th & 14th Streets, N.E. being 52 2/10 ft. frontage on N.E. 2nd Av. and running back 115 ft.'; but that after the purchase and upon an engineer making measurements for the construction of a two-story building thereon, it was found that the said lot fronted only 50.3 feet on N.E. Second avenue and ran back less than 115 feet; that the Rand Building, constructed before the purchase encroached upon the south side of said lot so that it covered 4.95 feet of the frontage by 46.65 feet back; and that said lot No. 2, extended back only 106.6 feet on the north border and about 102.95 feet on the south line. It is alleged that said representations were either falsely or recklessly made with disregard of the truth; that complainant relied upon said representations and thereby was induced to purchase said lot.

To this bill, defendant interposed a demurrer which was overruled. Thereupon an answer was filed denying any misrepresentations on the part of defendant and all allegations relied upon by complainant for relief; and later, pursuant to stipulations, defendant filed an amendment to her answer in which it appears she sought to have foreclosed the said mortgage held by her which in the meantime had become delinquent, both as to interest and part of principal.

Under these pleadings the cause was referred to a general master, who after taking the testimony filed his report in which he made his findings that the allegations of the bill of complaint had not been substantiated by competent evidence and that the equities in the cause were with the defendant and against the complainant. The master's report also found in favor of the prayer of defendant for affirmative relief, and recommended that a decree be entered covering the principal and interest of the mortgage, together with attorney's fees and costs.

Upon the final hearing before the chancellor, a decree was entered finding the equities upon the original bill with the defendant and against complainant and dismissing the bill; but finding the amended answer insufficient upon which to base a final decree of foreclosure in behalf of defendant.

From the above decree appeal was duly entered, and appellant filed seven assignments of error; but in presenting them in its brief, all errors were resolved into the statement that the court erred in finding the equities with the defendant and in dismissing the bill.

Appellee filed two cross-assignments of error based upon the court's order (1) in overruling defendant's demurrer, and (2) in dismissing the amendment to defendant's answer seeking affirmative relief.

Reverting first to the defendant's cross-assignments of error, it will be noted that the trial court denied the affirmative relief prayed for in the amended answer, because (1) said amendment contains no prayer for process against the plaintiff, (2) the mortgage sought to be foreclosed is not sufficiently set forth, (3) no process was issued directed to the complainant nor any decree pro confesso entered for failure of complainant to answer the cross-complaint of defendant, and because there was no cause at issue upon said cross-complaint.

We deem it unnecessary to enter into a discussion of those portions of the decree denying the affirmative relief, further than to state that it appears from a careful examination of all the questions presented that the trial court could scarcely have decreed otherwise; in fact, a cross-bill or answer setting up affirmative relief by way of foreclosure should set forth the cause of action with the same care and exactness that would be employed if the cross-bill or answer were the original bill. 3 Jones on Mortgages (8th Ed.) § 1879. An examination of the amendment to the answer shows that it was not done in this case.

The other question presented by appellant's assignments of error may be briefly stated as follows: Was the complainant under the pleadings and proof entitled to a cancellation of its deed and the return of its cash payment?

It appears that the offer to buy the lots in question first came from L. J. Coyle, who represented himself and one Philip Hannick; that before deed was delivered, Coyle and Hannick formed the Hancoy-Holding Company which took the deed and paid $30,000 cash and gave a mortgage for $120,000, as the purchase price; that defendant had not listed the property for sale with any one; that Coyle's offer was communicated to defendant in Atlanta by wire and she rejected the price offered, but offered to take $150,000 which he finally agreed to give. It further appears that the purchase was made and consummated in defendant's absence; that in drawing up the 'deposit receipt,' the property was described as 'Lot 2, Block 1, Rickmer's Subdivision of Dade County'; and that at the request of Coyle and by the use of the Plat Book of the City of Miami and a large may that hung on the wall, the dimensions of the lot were added at the time, as follows:

'Located bet. 13th & 14th Streets, N.E. being 52 2/10 ft. frontage on N.E. 2nd Av. and running back 115 feet.'

An examination of the 'Rickmer map,' officially recorded in 1913 in Plat Book 3, page 2, as...