Heisler v. Florida Mortg. Title & Bonding Co.
| Decision Date | 08 June 1932 |
| Citation | 105 Fla. 657,142 So. 242 |
| Court | Florida Supreme Court |
| Parties | HEISLER v. FLORIDA MORTGAGE TITLE & BONDING CO. et al. |
Commissioners' Decision.
Suit by Lilly K. Heisler, against the Florida Mortgage Title & Bonding Company and another, as joint trustees. From a decree of dismissal, complainant appeals.
Reversed and remanded. Appeal from Circuit Court, Hillsborough County L. L. Parks, judge.
Baya & Baya and W. A. O'Neill, all of Tampa for appellant.
McMullen & Draper, of Tampa, for appellees.
Appellant, in her amended bill of complaint, alleged, in substance, that she was a registered nurse and sought a quiet location, away from traffic, upon which to build a sanitarium in the city of Tampa; that she was shown several lots in a subdivision known as Suburb Royal and was assured she could obtain said lots for the desired purpose; that an agent, representing the purchaser of two lots on the Hillsborough river in said subdivision, approached her and offered to sell to her the said two lots for $8,500; that she explained to the agent that she wanted lots solely for the purpose of building thereon a sanitarium, and that, unless they could be used for that purpose, she would not be interested, whereupon she was informed by said agent that he would go with her to the defendants who were the holders of the title and ascertain whether or not she could build a sanitarium on the lots; that she and the agent called upon the defendants, stated their purpose in calling, and informed defendants that, unless she could build a sanitarium on the lots and use them for that purpose, she did not want them; that she explained to defendants, who held the title because the purchaser had not fully paid for the lots, that she intended to invest all of her life's savings in the construction of buildings suitable for her purpose, and that she wanted the lots for no other purpose; that the defendants advised her that she could construct a building on said lots and use and maintain it as a sanitarium, provided she did not use it for drunks, drug addicts, or insane people, and, to further assure her, the defendants later showed her a statement from their lawyers to the same effect; that the price was reduced $500, and, relying solely upon the agreement of the defendants, she paid them $8,000 and they delivered to her a deed conveying the property to her; that when the trade was made she was a widow unversed in real estate transactions, without advice of counsel, relied entirely upon her agreement with defendants that she could build upon said lots a sanitarium, which was the sole object of their purchase, as the defendants well knew; that she completed on said lots a sanitarium at a cost of $30,000 and equipped it with furniture in the approximate sum of $4,000, and intended to use it in accordance with the terms of her agreement to purchase, and not use it for drunks, drug addicts, or insane people; that soon after completion of sanitarium she was enjoined from operating it upon the ground that her deed contained a restriction against such use, and that, upon appeal from a final decree permanently enjoining her from so using the property as a sanitarium, the decree of the lower court was affirmed by the Supreme Court; that when she paid for said lots, she was advised by defendants that they would have the deed made and give it to her later; that the deed was not delivered to her until on or about October 1, 1926, after it had been recorded, though it bears date September 21, 1926, and was recorded on September 22, 1926; that upon receipt of the deed she placed it among her papers, and that she did not know until she was enjoined from using her sanitarium that it contained restricting clauses that would prevent her from using the property for which it was bought; that she was entitled to a deed in accordance with her agreement to purchase the said lots, but that the deed delivered to and received by her does not carry out the agreement because it contains restricting clauses which were not part of the agreement; that the deed should be reformed in such a manner as to conform with the agreement, and that matters not agreed upon should be stricken therefrom. A prayer for such relief, as well as general relief, was contained in the bill.
The Florida Mortgage Title & Bonding Company answered the said amended bill. Many of the allegations of the bill were denied, or they were neither admitted nor denied with a demand of strict proof. The answer shows that the said defendants as joint trustees agreed to convey the said lots and to 'give good title as therein stated, but avers that they advised her' that the said property, as well as other property in said subdivision, with the exception of one block, 'was subject to restrictions' set forth in the deed to complainant, the appellant here, and that they advised her that 'in their opinion the use of the premises for a rest-cure sanitarium did not constitute a violation of the restrictions and that in furtherance of their said opinion they secured an opinion from their attorneys and showed same to complainant, that in the opinion of said attorneys that the use of the said premises for a rest-cure sanitarium did not constitute a violation of the restrictions as set forth in the deed.' It is further averred that the complainant was enjoined shortly after the work was begun and before any material part of the building had been constructed, and it is admitted that the complainant 'may have relied upon the opinion of this defendant and its attorneys' as to the use of the property. Said defendant also says the deed delivered to the complainant was the deed which was its purpose and intention to execute and which was the purpose and intention of complainant to receive, and denies that any mistake was made in the preparation of the deed, or including therein said restrictions; but avers that 'the only mistake which might exist to the said entire transaction was a mistake in the opinion of the defendants or their attorney, and that even though such mistake might exist the complainant had no right to rely upon the same'; that there was no misconception on the part of said defendant as to whether or not the deed as executed carried out its agreement with complainant; that said defendant and one N. A. Perry, as trustees, had previously contracted to sell the said property to one Ressler, and that the contract contained the same restrictive covenants as are set forth in the deed to complainant, and it is averred that complainant acquired the rights of Ressler and thereafter surrendered the contract to said trustees and requested a deed in accordance with the terms of the contract. Said defendant further answering averred that Anna Marceau and others, for themselves and all others similarly situated, had filed a bill against the complainant for an injunction, and that an injunction was granted as stated in complainant's bill of complaint, and that by reason thereof the persons obtaining said injunction became vested with an equitable right in the premises, and that in consequence thereof complainant is not entitled to the relief she seeks. Copies of the injunction bill and decree thereon were filed with the answer and made a part thereof. A decree pro confesso was entered against N. A. Perry, as trustee.
Testimony was taken before a master, and upon final hearing the bill was dismissed. The cause is here upon appeal from the final decree.
It is admitted by the answer that the defendants advised the complainant that in their opinion the said lots could be used for the purpose of building thereon a sanitarium, and that they showed the complainant an opinion of their attorneys that the use of premises for a rest cure sanitarium would not violate the restrictions, and it is also inferentially admitted that they and their attorneys were mistaken as to the effect of restrictions that were inserted in the deed, it being their purpose and intention to execute the deed as it was prepared, and to include therein said restrictions.
The testimony shows that one Ressler held a contract for the purchase of the lots in question, which contract contained restrictive covenants similar to those contained in the deed, and that, at the time the complainant paid for the lots, an assignment was prepared in the offices of defendants and executed by Ressler, in the presence of the complainant, but that complainant had no knowledge of the assignment or the contents thereof. When she first went to the offices of the defendants with the real estate agent, she paid $400 as a 'binder' for the lots, and when she returned later to close the deal she gave three checks to cover the balance of the purchase price--one payable to Suburb Royal, one payable to Ressler, and the other for a comparatively small amount payable to an officer of the defendant corporation. These checks were prepared by the officer of defendant corporation and then signed by the complainant. No contract or receipt was taken by the complainant, but it was stated that a deed would be sent to her. No lawyer represented the complainant at any time prior to the consummation of the deal. There is no dispute as to complainant going to defendants to ascertain whether or not she could build a rest cure home on the lots. The evidence is conflicting as to whether or not she was advised of restrictions upon the property, or the nature of them if she was so advised.
The following are excerpts from a letter of the attorneys to the defendants, which complainant said she had read:
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