Harris v. Zeuch

• Decision Date: 20 October 1931
• Citation: 103 Fla. 183,137 So. 135
• Parties: HARRIS et al. v. ZEUCH.
• Court: Florida Supreme Court

137 So. 135

103 Fla. 183

HARRIS et al. v. ZEUCH.

Florida Supreme Court

October 20, 1931

Commissioners' Decision.

Suit by Herman J. Zeuch against Charles Harris and wife and another. From an order striking a portion of the answer, defendants appeal.

Order affirmed, and the cause remanded.

Syllabus by the Court.

SYLLABUS

To entitle one to a rescission of a contract for the purchase of land on the ground of a fraudulent misrepresentation by the seller of an existing material fact affecting the value of the land, the misrepresentation must be in reference to some material thing unknown to the purchaser either from his not having examined for want of opportunity to be informed or from entire confidence reposed growing out of fiduciary relations.

If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief.

In the execution of written agreements, where there is such inattention on the part of one of the parties as amounts to gross carelessness and misstatements by the other party, and but for the former the latter would not be effective, any loss occurring thereby to the inexcusably negligent party must be borne by him.

An unsealed instrument purporting to convey title to real estate, executed by a corporation, although insufficient to convey the legal title, passes the equitable title; which equity will protect.

A purchaser under an executory contract in possession of the premises has an interest which he may mortgage or sell.

The title to real estate in Florida acquired, held, or disposed of by a foreign corporation, organized after June, 1907, will not be affected because of the failure of such corporation to obtain or receive a permit to transact business in compliance with the provisions of chapter 5717, Laws of Florida 1907 (now section 6026[4095], Compiled General Laws of Florida 1927).

It is not essential to the ownership of land that the execution of the deed under which the title is claimed, from persons other than married women, must be acknowledged by the grantor.

A defective certificate of acknowledgment attached to a deed from husband and wife that will cause the deed to be inoperative as to the wife's right of dower, and make the recording thereof a useless undertaking, will not affect the conveyance of the husband's title, subject to the wife's dower interest, and such defective certificate of acknowledgment to the deed cannot be used as a foundation for the defense of failure of consideration in a suit for the purchase money.

Where the title of an officer taking an acknowledgment to a deed is written out in full in the body of his certificate, its omission from the signature is immaterial, or the title may be affixed to the signature, and, if so, that is, of itself sufficient, and the use of initials generally understood to stand for the title to an office will answer.

Where the certificate of acknowledgment to a deed recites that the grantors 'personally appeared before me, an officer duly authorized to administer oaths and take acknowledgments,' etc., and concludes as follows: 'Witness my hand and official seal,' etc., and is signed 'Erna L Eckert,' with '(N. P. Seal)' affixed, held, that this is sufficient to show that the acknowledgment was made before a notary public. Appeal from Circuit Court, Indian River County Elwyn Thomas, judge.

COUNSEL

T. B. Ellis, Jr., of Ft. Pierce, for appellants.

Vocelle & Mitchell, of Vero Beach, for appellee.

OPINION

DAVIS C.

The appellee, Herman J. Zeuch, whom we will refer to as the complainant, instituted suit for the foreclosure of a mortgage in Indian River county against Charles Harris and his wife, Belle Harris, mortgagors, and one Floyd Harris, whom we will refer to as the defendants. In the copy of the mortgage which is attached to and made a part of the bill it is made to appear that it was given to secure purchase money. The bill alleges that the property described therein had been conveyed by the mortgagors to the defendant Floyd Harris subject to the mortgage of complainant.

The defendants filed an answer to the bill, and therein admitted the execution of the notes and mortgage, and they also admitted the execution of the deed from the defendants Charles Harris and wife to the defendant Floyd Harris, but denied that there was any indebtedness, and averred that whatever consideration there may have been therefor failed, for reasons set out in the answer substantially as follows:

That for a long time prior to the transaction the complainant had been a large stockholder, president, and active head of a pioneer land company of the east coast of Florida; that the title of said company was publicly recognized and accepted as record title; that the statements of complainants as to the titles of any of such lands were usually accepted as to same; that the complainant had a general reputation in Indian River county as a man of honesty and fair dealing, to such an extent that he was known as the 'Father of Vero'; that over a period of years complainant and defendants had done a great deal of business together, and that complainant in a large number of instances acted as agent of the defendant Charles Harris in buying and renting lands, and that in the course of such transactions a sense of confidence was developed in said defendant to-ward the complainant, all of which was known to the complainant, and the complainant had not theretofore betrayed the trust and confidence reposed in him by said defendant; that, upon learning that the defendant Charles Harris was desirous of buying the said land, the complainant offered to get and have conveyed to the said defendant the said land, which was and is a part of the lands which originally belonged to complainant's company, it being understood that complainant was to make a reasonable profit on the sale thereof to said defendant; that complainant then and there 'represented, covenanted and warranted' to said defendant that he 'had arranged to buy the said lands, and that he had had the titles to said land examined by his attorneys, and that the title was a good record title, and that he had procured a deed with the name of the grantee left blank; and that said deed was correctly executed, and that the same had been examined by counsel learned in law both as to manner of execution, and as to form and substance; and that he, the complainant would arrange all details, and himself, for his old-time friend, the said defendant, get terms arranged, and carry a mortgage for said defendant, for the part of the purchase price that the said defendant did not then pay in cash;' that the said defendant was not versed in the formalities of execution of deeds, and examination of titles; that by reason of the trust and confidence in complainant, growing out of former transactions, he believed said representations to be true, not knowing the same to be false and untrue, and allowed the complainant to buy said lands for him, and did not have an independent examination of the title made by an attorney, being dissuaded by the complainant from having such examination made, and upon said representations he consummated the deal, and allowed the complainant to obtain the deed to said land and insert therein the name of the defendant Charles Harris as grantee and record the same; that none of the defendants learned that the said representations were false and untrue until at or about the time of the filing of the suit, when they also learned that the 'said deed was not executed under corporate seal of said company' (the grantor); and that neither of said defendants had ever had the deed in their possession or seen the original thereof.

It is further averred that the grantor of the said Charles Harris was a corporation under the laws of Iowa, and was not authorized to transact business in Florida; that at or about the time of filing suit defendants learned that the only deed by which said grantor corporation claimed to hold title shows on the face thereof that it was not acknowledged as required by law, before an officer authorized by the laws of Florida to take acknowledgment of deeds, a certified copy thereof being attached as an exhibit to the answer; that in making the representations aforesaid the complainant intended to defraud, and knowingly defrauded, the said defendant Charles Harris; that, upon learning of alleged defects, defendants offered to release the said land to the complainant and to make any proper deeds, but that complainant refused such offer; that, when the property was conveyed to Floyd Harris, who is the son of the other defendants, he was advised of the said representations of the complainant, and that any claim the defendants Charles Harris and Belle Harris may have had against the complainant because of his said representations was 'intended, and was by their said deed to Floyd Harris, effectually assigned, conveyed and set over to said Floyd Harris,' who is the owner and holder of such claim; that defendant Floyd Harris is and has been unable to sell the property and cannot safely improve it. Defendants offer to do equity, and pray that the sale be rescinded; that the complainant be required to surrender and deliver up the said notes in his bill described, and to pay over to whom may be decreed to be entitled thereto the moneys received by him on the purchase of said land with legal interest and for general relief.

Upon motion of the complainant, that portion of the answer setting up a defense to the bill and praying for affirmative relief was stricken therefrom. From this order the defendants...