Holley v. May

• Decision Date: 12 November 1954
• Citation: 75 So.2d 696
• Parties: Georgia HOLLEY, widow, Maude Holley White, widow, and Ruth Holley Marshall, Appellants, v. W. E. MAY, Appellee.
• Court: Florida Supreme Court

Page 696

75 So.2d 696

Georgia HOLLEY, widow, Maude Holley White, widow, and Ruth Holley Marshall, Appellants, v. W. E. MAY, Appellee.

Supreme Court of Florida, Division A.

Nov. 12, 1954.

Hull, Landis, Graham & French and J. Compton French, De Land, for appellants.

J. U. Gillespie, New Smyrna, for appellee.

SEBRING, Justice.

The appeal is from a summary final decree entered in favor of the plaintiff below.

The suit arises out of an encroachment of a building owned by the defendants below upon an adjoining lot conveyed by the defendants to the plaintiff's predecessor in title by reference to a recorded plat which showed the deeded property to be a 50-foot lot and clearly delineated all boundaries. In the suit the plaintiff sought a declaratory decree determining his ownership of that portion of his lot upon which the building intrudes and that he has the lawful right to demolish and remove the encroaching portion of the building. In an earlier appeal in this cause the complaint was held sufficient to state a cause of action for declaratory relief, and the allegations of the complaint are set forth at length in that opinion. May v. Holley, Fla., 59 So.2d 636.

The defendants' amended answer to the complaint sets forth by way of defense to the cause that title to the strip of land upon which the building encroaches had passed to them by acquiescence in the establishment of a boundary line prior to the institution of the present suit; and that defendants' title to said strip of land had been perfected by adverse possession. In a counterclaim incorporated in the amended answer, the defendants prayed, alternatively, either for reformation or rescission of the deed from the defendants to plaintiff's predecessor in title, on the theory that there had been a mutual mistake of fact on the part of the grantor and the grantee at the time the deed was executed and delivered to plaintiff's predecessor in title. In respect to the claim of mutual mistake the significant allegation of fact in the counterclaim was that the parties did not intend to convey any portion of the land on which the building stood and that the description of the property as it appeared in the deed resulted from 'the mistaken belief of the grantors and grantee that all of Lot 251 (the lot conveyed) lay north of said dwelling.'

On motion of the plaintiff, the chancellor rejected the defenses asserted by the defendants and entered the final decree from which this appeal is taken.

We have the view that the chancellor was correct in ruling that the matters set forth in the answer and counterclaim did not constitute valid grounds for rescission or cancellation.

It is well established that reformation or rescission of an instrument on the ground of mutual mistake of fact cannot be claimed against a third-party bona fide grantee without notice. 45 Am.Jur., Reformation of Instruments, Secs. 68 and 69, pp. 624-625. The rule in this respect is that the right of reformation stands on the same footing as any other latent equity, and as recognized in the case of Barlow v. Stevens, 112 Fla. 57, 150 So. 245, 246, where 'The complainant * * * was compelled to rely upon reformation of his mortgage in order to reach and bring into its scope the 21 acres of land that had been erroneously left out. * * * Defenses and equities existing between a mortgagee and his mortgagor, or third persons, should not be allowed to affect the rights of the assignee of a subsequent mortgage on the same land, unless the latter had notice thereof at the time of the assignment.' See also Bright v. Buckman, C.C.Fla., 39 F. 243; annotations 44 A.L.R. 87; 102 A.L.R. 829. Therefore, while the defendants' assertions that the deed 'lacked the mutual assent necessary to a valid contract' might have been sufficient as a predicate for rescission or cancellation against the original grantee, the contention is not available against the plaintiff, who is the successor in title of the original grantee of a deed that was valid on its face, and who is, so far as shown by the pleadings, a bona fide grantee without notice. Certainly the mere fact of possession of the area in question by the defendants, subsequent to their conveyance, would not put a purchaser on notice of any potential right in such grantors to cancel or rescind the deed as to the entire lot, but would, at best, only put one upon inquiry as to equitable claims against the particular strip in their possession by way of reformation or otherwise. Morton v. Smith, 133 Fla. 260, 183 So. 475.

As to the right of the defendants to reform the...