Johnson v. Green

• Decision Date: 31 July 1951
• Citation: Johnson v. Green, 54 So.2d 44 (Fla. 1951)
• Parties: JOHNSON v. GREEN et ux.
• Court: Florida Supreme Court

Page 44

54 So.2d 44

JOHNSON v. GREEN et ux.

Supreme Court of Florida, Division B.

July 31, 1951.

Anderson & Nadeau, Miami, for appellant.

Myers, Heiman & Kaplan, Miami, for appellees.

CHAPMAN, Justice.

Guy N. Johnson and wife, Nina D. Johnson, during the year 1929 or 1930, acquired a tax deed to Lot 179, Palmhurst, a subdivision in Dade County Florida, according to the plat thereof recorded in Plat Book 7 at page 22 of the public records of Dade County, said property commonly known as 3165 Ohio Street, Coconut Grove. Situated on the property was a house or dwelling which the Johnsons went into possession of and occupied as a home for approximately one year after obtaining the tax deed. The house or dwelling was later furnished (according to inventory) and rented to tenants on a monthly basis. On June 11, 1946, the Johnsons entered into a written agreement to sell the described property to Charles W. Green and wife, Reba Green, which instrument was signed by the parties. The agreed purchase price of the property was fixed at the sum of $7,750.00, payable $3,500.00 in cash and the balance of $4,250.00 to be secured by note and mortgage, and the note was to be paid at the rate of $50.00 per month. The parties contracted to convey a 'good and merchantable title'.

It appears by the record that the Johnsons filed suit and obtained a decree quieting title to the real property described in the purchase and sale agreement and thereafter the parties closed their trade. Guy N. Johnson and wife, Nina D. Johnson, executed and delivered a warranty deed date June 18, 1946, to the described real estate and furnishings then in the dwelling located at 3165 Ohio Street, Coconut Grove, Florida. The deed was duly recorded and the grantees named therein went into immediate possession of the property, real and personal, after executing a purchase price note and mortgage in the sum of $4,250.00 payable to the grantors named in the warranty deed. The mortgage was duly recorded and monthly payments were made by the Greens on the indebtedness through the months of October, November and December, 1947.

The Greens, during the months of October, 1947, obtained the services of the Biscayne Engineering Company to survey the property described in the warranty deed, when it was determined, as a result of the survey, that the building or dwelling located on Lot 179 encroached on the lot immediately adjoining to the south (being Lot 190 of Palmhurst Subdivision) 5.55 feet at the west corner and 5.40 feet at the east corner. Lot 179, according to the map appearing in the record, was approximately 50 feet north and south by 125 east and west. An old rock wall or fence runs from the corner of the house east to a point opposite the southeast corner of Lot 179 and the grantors in the deed claimed the land from the southwest corner of the dwelling out to the street. Mrs. Velda Kegan lived in a house situated on Lot 190, just south of Lot 179, since 1941 and at page 62 of the transcript appears her testimony to the effect that she learned for the first time of the alleged encroachment in October, 1947, when the Greens had the Biscayne Engineering Company survey the property. The Greens hold possession of Lot 179, supra, under the warranty deed from the Johnsons and their right of possession under the deed has never been challenged, nor have they been evicted from the property, nor has an eviction ever been threatened.

The Greens, as plaintiffs-appellees, filed their bill of complaint in equity against the Johnsons, defendants-appellants, and set forth the several details of the real estate transaction and concluded that it was the lawful duty of the Johnsons to convey to them a good and merchantable title to Lot 179, but failed so to do. That the Johnsons represented that they owned and could convey a merchantable title to the strip 5.55 feet north and south by 125 east and west off the south side of Lot 179, and such representations were false and material and intentionally made to induce them to act to their injury. The plaintiffs-appellees would never have accepted title, paid their money, and executed the purchase price mortgage had they been correctly informed as to the true southern boundary of Lot 179. The bill prayed for a rescission of the trade, the cancellation of the warranty deed and the purchase price mortgage, and for an accounting. That a lien be decreed on the described property for all money paid by the plaintiffs-appellees to the defendants-appellants.

An answer was filed, when the cause was referred to a Special Master, with directions to take the testimony of the respective parties and make recommendations as to an appropriate decree to be entered in the premises. The Special Master held that the disputed ownership of the strip of land 5.55 feet across the southern boundary of Lot 179 rendered the title not merchantable. The final decree rescinded and cancelled the sale, cancelled the purchase price mortgage, and decreed a lien on Lot 179 for the several sums paid to the plaintiffs-appellees and a further sum for betterments or improvements placed about the property by the Greens during the period they were in possession under the warranty deed continuously from 1946 until this suit was filed on February 26, 1948. The Johnsons appealed.

In our early case of Hunter v. Bradford, 3 Fla. 269, we held that where a purchaser takes a deed with warranty, pays the purchase price and has possession and there is no fraud in the transaction, he cannot, before eviction, obtain the aid of a chancery court to have the contract rescinded or purchase money restored on the ground of a defect of title, as his remedy is at law on the covenants in his deed. The rule is otherwise as to executory contracts. Randall v. Bourgardez, 23 Fla. 264, 2 So. 310, 11 Am.St.Rep. 379; Adams v. Fry, 29 Fla. 318, 10 So. 559; Camp Lumber Co. v. State Sav. Bank, 59 Fla. 455, 51 So. 543.

The case of Hancoy Holding Co. v. Lambright, 101 Fla. 128, 133 So. 631, involved a bill of complaint alleging material misrepresentations of pertinent facts and praying for a rescission and cancellation of the contract of sale. The case was dismissed by the Chancellor on final hearing and on appeal the order of dismissal was affirmed. An encroachment or disputed boundary 4.95 by 46.65 was there involved, similar in many...