Phifer v. Steenburg

• Decision Date: 06 January 1914
• Citation: 64 So. 265,66 Fla. 563
• Parties: PHIFER v. STEENBURG et al.
• Court: Florida Supreme Court

64 So. 265

66 Fla. 563

PHIFER v. STEENBURG et al.

Florida Supreme Court

January 6, 1914

On Application for Rehearing, Jan. 27, 1914.

Appeal from Circuit Court, Alachua County; Wills, Judge.

Bill by William Phifer against Arthur O. Steenburg and others. From an order sustaining demurrer to bill, complainant appeals. Reversed and remanded.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

Where there is a contract of sale of land by a government designation, stating the quantity to be 3,500 acres, more or less, and where it is alleged in a bill filed by the purchaser of the land to obtain an abatement of the purchase price because of a deficiency of 540 acres, and where it is alleged in the bill that, when the purchase was made, the vendor's agent assured the purchaser that he well knew the lands, that they embraced in the aggregate 3,500 acres and that the vendors would make a good title to that many acres, and it is also alleged in the bill that the vendee did not know the number of acres, and had no notice of any deficiency, and relied entirely upon the assurance of the vendor's agent, a demurrer to said bill on the ground that there is no equity in the bill should not have been sustained.

COUNSEL

Hampton & Hampton, of Gainesville, for appellant.

W. S Broome, of Gainesville, for appellees.

OPINION

HOCKER J.

Appellant filed an amended bill of complaint in the circuit court of Alachua county, alleging, in substance, that Alfred C. Steenburg, the owner of certain lands in Alachua county, and his wife, on the 23d of July, 1906, by Arthur O. Steenburg, his authorized attorney in fact, entered into an agreement in writing with Phifer, which is attached to and made a part of the original bill, in the following words and figures:

'The State of Florida, Alachua County.

'Know all men by these presents, that I, A. O. Steenburg, of the county of Alachua, state of Florida, am held and firmly bound unto W. B. Phifer, of the county of Alachua, state of Florida, in the sum of ten thousand dollars, for the payment whereof well and truly to be made do bind myself, my heirs, executors, and administrators, firmly by these presents. Signed and sealed this 23d day of July, A. D. 1906.

'The condition of the above obligation is such that whereas, the said A. O. Steenburg has this day bargained and sold to the said W. B. Phifer the following described property, lying and being in the county of Alachua, and state of Florida: All of the N.W. 1/4 of N.E. 1/4 and E. 1/2 of N.E. 1/4 and N. 1/2 of N.W. 1/4 and S.W. 1/4 of N.W. 1/4 and N. 1/2 of S.E. 1/4 of N.W. 1/4 and S.E. 1/4 and S. 1/2 of S.W. 1/4 and N.W. 1/4 of S.W. 1/4 and S. 1/2 of N.E. 1/4 of S.W. 1/4 of section 7, township 11, range 22. Also the N. 1/2 and S.W. 1/4 and N. 1/2 of S.E. 1/4 and S.W. 1/4 of S.E. 1/4 of section 13, township 11, range 21. Also N. 1/2 and N. 1/2 of S.E. 1/4 and S.E. 1/4 of S.E. 1/4 and E. 1/2 of S.W. 1/4 of S.E. 1/4 and N.W. 1/4 of S.W. 1/4 of S.E. 1/4 and N.W. 1/4 of S.W. 1/4 and S.E. 1/4 of S.W. 1/4 of S.W. 1/4 of section 14, township 11, range 21. Also all of sections 19 and 30 of township 11, range 22, containing in the aggregate 2,960 acres, more or less, according to plats of U.S. survey of said townships. Also all land in section 25, township 11, range 21, not previously deeded by J. M. Hawthorn, Dc'd, containing 480 acres of land. Also S.E. 1/4 of S.E. 1/4 and E. 1/2 of S.W. 1/4 of S.E. 1/4. The said land being divided by a line running from the N.E. corner to the S.W. corner of the S.W. 1/4 of the S.E. 1/4, and all being in section 24, township 11, range 21, containing sixty (60) acres, more or less.

'And in consideration thereof the said W. B. Phifer has executed 4 certain promissory notes of even date herewith, payable as follows:

'$2,500.00, payable January the 1st, 1907.

'$2,500.00, payable July the 23d, 1907, and interest at 8%.

'$2,500.00, payable July the 23d, 1908, and interest at 8%.

'$2,500.00, payable July the 23d, 1909, and interest at 8%.

'Now, if the said W. B. Phifer shall well and truly pay the said promissory notes, with interest as stated therein, and shall pay all taxes and insurance upon the within described property, into the possession of which from the date hereof it is hereby agreed that he shall enter and continue, then the said A. O. Steenburg shall execute a deed in fee simple to the said W. B. Phifer for the aforesaid property, when this obligation is to be void, else to remain in full force and virtue.

'A. C. Steenburg. [Seal.]

'Alice W. Steenburg, [Seal.]

'By A. O. Steenburg,

'Their Attorney in Fact.

'Signed, sealed, and delivered in presence of

'F. H. Clyatt.

'S. H. Wienges.'

This contract was properly acknowledged.

It is alleged that Arthur O. Steenburg acted under the following power of attorney:

'A. C. Steenburg and Wife to Arthur Steenburg.

'Power of Attorney.

'Know all men by these presents, that we, Alfred C. Steenburg and Alice W. Steenburg, his wife, of the city of Farmington, county of Fulton, and state of Illinois, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Arthur Steenburg of the city of Gainesville, county of Alachua, and state of Florida, our true and lawful attorney for us, and in our name, place, and stead to contract the sale and execute a deed for any interest we may have in any lands or real estate situated in the township numbered eleven (11) south, and range twenty-one (21) east, in Alachua county, in the state of Florida. Also to any lands in township eleven south and range twenty-two (22) east, in said Alachua county, in the state of Florida, giving and granting unto him, our said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as we might or could do it personally present at doing thereof, with full power of substitution and revocation hereby ratifying and confirming all that he, our said attorney, or his substitute, shall lawfully do or cause to be done by virtue hereof.

'In testimony whereof we have hereunto set our hands and seals this 29th day of June, A. D. 1906.

'Alfred C. Steenburg. [Seal.]

'Alice W. Steenburg. [Seal.]

'Signed, sealed, and delivered in presence of

'Clyde Steenburg.

'Samuel Jack.'

This power of attorney was properly acknowledged.

The bill alleges that Phifer executed the four promissory notes of $2,500 each described in the contract of sale as the consideration for said lands; that A. O. Steenburg, acting as attorney in fact, assured orator that he well knew the said lands, and that they contained 3,500 or more acres, and that he would make a good title to that many acres; that orator, not knowing himself, but relying solely on the assurance of A. O. Steenburg, as agent, agreed to purchase said lands, and give his four notes aggregating $10,000, the purchase price thereof; that, since the contract of sale was executed, he has had the lands surveyed, and that there is a shortage of 530 acres, and gives the sections, townships, and ranges where the shortages occur. The bill alleges that the purchase price of $10,000 was fixed by the said alleged acreage of 3,500 acres at so much per acre, and not in gross.

The bill alleges that orator has paid three of said notes, and has offered to pay so much of the fourth note as will be due after deducting the amount created by the deficiency of acreage at the price per acre as shown by the contract; that appellees refuse to accept the amount thus alleged to be due but insist upon full payment of the last note of $2,500; the shortage is alleged to be 540 acres; that orator is now ready and willing...