Marshall v. Hartman

• Decision Date: 01 February 1932
• Citation: Marshall v. Hartman, 104 Fla. 143, 139 So. 441 (Fla. 1932)
• Parties: MARSHALL et ux. v. HARTMAN.
• Court: Florida Supreme Court

139 So. 441

104 Fla. 143

MARSHALL et ux. v. HARTMAN.

Florida Supreme Court, Division A.

February 1, 1932

Suit by Viola Hartman against W. W. Marshall and wife. From a decree for plaintiff, defendants appeal.

Reversed and remanded.

Syllabus by the Court.

SYLLABUS

1. Where a person negotiating for the purchase of obviously nonriparian lots, to whom the owner's agent has represented that riparian rights are appurtenant thereto inspects the lots in person, and it appears that such lots are obviously nonriparian, there being a public street and 150 feet of filled in land between the lots and the river this is enough to put the prospective purchaser upon inquiry as to the truth or falsity of such representation, where, as in this case, ample time and opportunity to investigate were afforded before the contract of purchase was made.

2. A prospective purchaser of land which does not extend to the water, and who personally inspects the property, is presumed to know that riparian rights are not appurtenant to land which has no water boundary.

3. The grantee of lots abutting on a public street, whose grantor owned the title to the land under the street and who makes the conveyance with reference to the plat showing the street is presumed, in the absence of limitations in the deed, or other evidence to the contrary, to own the soil to the center of the street, subject to the public easement; but this rule would not vest the grantee with riparian rights in waters or submerged lands abutting the opposite side of such street.

4. When an answer in equity admits that the defendant neither had or claimed any right, interest, or title in lands which had been filled in by another between the street in front of his property and the channel of navigable water, he cannot on appeal make any claim of right or title inconsistent with such admission.

5. Where, in a contract for the sale of real estate, the description of the property is followed by the words, 'and riparian rights,' but the contract expressly provided that the vendee was to accept title from the vendor 'as abstract now shows same to be' and the vendor delivers an abstract of title of the property to the vendee contemporaneously with the execution of the contract, the contract must be construed in connection with such abstract, and the words 'and riparian rights' should be construed to mean such riparian rights, if any, as are shown by the abstract to be vested in the vendor.

6. Where it appears from a contract of sale, or the circumstances accompanying it, that the parties had in mind merely that the vendor should make such conveyance as would pass all the title which the vendor had, that is all the vendee can insist upon.

7. The defense of want of knowledge on the part of one charged with laches is one easily made, and easy to prove by his own oath; hence the law demands that not only he should have been ignorant of the alleged fraud, but that he should have used reasonable diligence to have informed himself of the facts. Appeal from Circuit Court, Volusia County; M. G. Rowe, judge.

COUNSEL

Sholtz, Green & West, of Daytona Beach, and L'Engle & Shands, or Jacksonville, for appellants.

Scarlett, Jordan, Futch & Fielding, of Deland, for appellee.

OPINION

BROWN J.

Viola Hartman, an unmarried woman, residing in New York, on May 30, 1927, exhibited her bill of complaint against W. W. Marshall and wife, residents of Volusia county, Fla., for the rescission and cancellation of a certain contract, dated November 2, 1925, evidencing the purchase by her from Marshall of described real estate in Daytona Beach, the purchase price being $150,000, $25,000 cash and the remainder payable $2,500 every six months thereafter with interest, and for the recovery of what she had paid on said contract, less rents collected by her during the period of about eighteen months since the execution of the contract. The gravamen of the bill was that the execution of the contract had been secured by Marshall's falsely representing that the land had riparian rights, which representation was alleged to have been a very material one, and that the contract itself called for riparian rights, whereas complainant had thereafter, in April, 1927, discovered that the property had no riparian rights appurtenant thereto. The defendants answered the bill, denying that any such representation had been made, or that the contract obligated them to convey any title or rights other than such title or rights as defendants had, as shown by an abstract of the title furnished to complainant when the contract was made, and alleged that defendants had never assumed or claimed that the property had any riparian rights; that the words 'and riparian rights' were embraced in the contract merely to make the contract correspond to the deeds by which Marshall had acquired title to the property. By way of affirmative relief, defendants prayed that complainant be required to specifically perform the contract. Upon final hearing on pleadings and proof the circuit court rendered a decree as prayed for by complainant, canceline the contract and ordering that the defendants pay the complainants $49,831.01, and that in default of payment the property be sold to satisfy the amount so found to be due. From such decree appeal with supersedeas was taken to this court.

In all the negotiations with reference to the purchase of the property and the execution of the contract, and all that transpired thereafter, the complainant was represented by her brother, Albert Hartman, who was her agent and attorney in fact, with whom she was associated in the warehouse business in New York City. The complainant hereself never came to Florida. The entire transaction was handled for her by her brother.

Albert Hartman visited Daytona Beach for ten or twelve days in the latter part of July, 1925. He says he made the trip to recuperate from an attack of illness, and also with the idea of securing a good location for a concentration warehouse, with riparian rights, to which he could 'barge in' freight; there being in existence at that time an embargo on railroad freight shipments south of Jacksonville. Soon after his arrival in Daytona Beach, he called on a Mr. Levenstein, an acquaintance of his who ran a shoe store on Beach street, but who was also in the real estate business. He told Levenstein of his desire to buy such a warehouse site with riparian rights, and engaged Levenstein to help him buy a piece of property suitable for this purpose. Levenstein called in a Mr. Gille, a real estate broker, who, Levenstein says, told him that he had a piece of property on Beach street, belonging to Mr. Marshall, which had riparian rights, and which would suit him. Levenstein testified that he knew there was some property fronting on Beach street which had riparian rights and some which had not. Gille is referred to by Hartman and Levenstein as Marshall's agent, though Hartman paid him a commission; but it appears from Marshall's testimony that before leaving for Vermont for the summer, he had engaged Gille to collect for him the rents as they fell due on this property, and gave him a 'probable' sales price of $150,000. The property was shown to Hartman, who inspected it several times. It had a frontage of 150 feet on Beach street, and a depth of 350 feet, running back in a somewhat irregular shape to Daytona street, on which latter street it had a frontage of 80 feet. There were five stores located on the property, fronting on Beach street, which was a paved street 50 or 60 feet wide, running in a northerly and southerly direction, parallel with the Halifax river, a wide, navigable body of water. The property in question was located on the west side of Beach street. Across Beach street, on the east side, there was a strip of recently filled in land, about 150 to 200 feet wide, between the street and the river, running for some distance north and south. Hartman appears to have assumed, without asking any questions, that the portion of this land between the east side of Beach street and the river, opposite the Marshall property, constituted 'riparian rights,' appurtenant to, and which went with, the Marshall property. Gille, he says, had told him that the property had riparian rights. Gille denied this, but said that he said no more than that the abstract stated that riparian rights went with the property; that 'this was of record with the title to that property, whatever that amounts to.' That he never told Hartman or Levenstein that Marshall had any title to any land lying east of Beach street; and that he also told Hartman that the city claimed the land east of Beach street, and had ordered all structures thereon to be removed and was not permitting any others to be erected.

Hartman testified further that he knew nothing of the previous history of the property and relied on Gille's representation without investigation or legal advice. But he must have known that the land he was buying was all located on the west side of Beach street, and even though he may have honestly believed that the land he was buying had riparian rights, the fact remains that by an inspection of the property (which he visited several times), he was confronted with the obvious fact that between the property he was buying and the river there was not only a public street, but also 150 feet or more of land, recently filled in land, it is true, but land nevertheless. As land is not appurtenant to land (Rivas v. Solary, 18 Fla. 122), and as riparian rights are not appurtenant to land which has no water boundary (45 C.J. 570 et seq.), all of which Hartman must be presumed to have known, this was enough to have put him upon inquiry. And if he had inquired he could easily have...