Crosby v. Andrews, 61 Fla. 554

Crosby v. Andrews

61 Fla. 554 | Fla. | 1911

Lead Opinion

Per Curiam.-

The trustees of a church brought a suit to have canceled on the ground of mistake a deed of conveyance made by them to Crosby covering the whole of the west half of the east half of Arpent lot 30 when the church did not own the north 64 feet thereof, and Crosby appeals from an order overruling his demurrer to the trustees’ bill of complaint.

As stated by Mr. Justice Shackleford in the opinion prepared by him: “Since the question which we are called upon to decide is the correctness of the order in overruling the demurrer to the bill, we must bear in mind that the demurrer, Avliich is to the whole bill, operates as an admission that all the allegations in the bill which are well pleaded are true. If the bill makes any case for equitable relief, the demurrer was properly overruled. City of Miami v. Shutts, 59 Fla. 462, 51 South. Rep. 929.”

This is not a case where grantors having a right to convey have by their own negligent mistake conveyed land they did not intend to convey to a grantee who had reason to suppose the grantors had a right to convey and intended to convey to him. But here it appears that the grantors were negligent in conveying but had no right to convey the north 64 feet of the W. -| of E. of Arpent Lot 30 and that the grantee reasonably should have known the *574grantors had no right to convey and did not intend to convey the north 64 feet of the quarter lot.

A deed of conveyance may be rescinded or canceled for a negligent mistake of fact that is unilateral where the negligence is not a breach of legal duty and the mistake is material and made under circumstances that render it inequitable for the other party to have the benefit thereof, even though he did not by commission or omission contribute to the mistake,'and the parties were dealing at arms length and on equal footing. See 2 Pomeroy’s Eq. Jur. section 856; Calverley v. Williams, 1 Vesey Jr. 210; Benesh v. Travelers’ Ins. Co., 14 N. D. 39, 103 N. W. Rep. 405; Brown v. Lamphear, 35 Vt. 252; Garrard v. Frankel, 30 Beav. 445; 6 Current Law 679. See also notes to Steinmeyer v. Schroeppel, 117 Am. St. Rep. 224.

From the allegations of the bill of complaint admitted by the demurrer there appears to be no doubt that the conveyance was made under a mistake on the part of the grantors as to the extent of the land included in the deed, and that their own carelessness caused such mistake to be made. But if the parties appear to have been dealing at arm’s length and on equal footing, and the grantors had no right to convey the north 64 feet of the quarter lot, and under the circumstances disclosed by the bill of complaint the grantee should reasonably have known that the grantors had no right to convey and did not intend to convey to him the north sixty-four feet of the quarter lot, there is equity for relief. It is in effect alleged that a conveyance of the north sixty-four feet of the quarter lot was on record ; that the grantee had been engaged in business on the adjoining quarter of the same half lot; that he knew that the north sixty-four feet was separated from the remainder of the quarter lot by “a high and very obvious” fence that also embraced other land of an individual; that *575he offered to buy the property “belonging to the church” that the trustees of the church were authorized to sell and he took a conveyance only from the trustees. It is true the trustees gave a personal warranty, but they did not purport to convey individual property.

The carelessness of the trustees does not amount to a breach of a legal duty or bad faith towards the grantee, and could not reasonably have misled him; and the facts' and circumstances that were known or should have been known by the grantee in making the purchase, are of such a nature that notwithstanding the claim that he thought he was buying the entire quarter lot, he should have known the trustees with whom he was dealing at arm’s length and on equal footing had no authority to convey and did not intend to convey the north sixty-four feet of the quarter lot; and, consequently the grantee’s claim is equitable. As it is alleged the trustees promptly endeavored to correct the error when discovered before irreparable injury had resulted to the grantee, and offered to do justice, a court of equity under proper proofs may in the exercise of a reasonable discretion cancel the conveyance upon the doing of complete equity by the parties asking such relief.

As there appears to be equity in the bill of complaint the order overruling the demurrer thereto is affirmed.

Whitfield, C. J., and Taylor, Hooker and Parkhill, J. J., concur.

Dissenting Opinion

Shackelford, J.,

dissenting.

I submit the following opinion, which was prepared by me as the opinion of the court, but in which a majority of the members of the court announced that they could not concur, as representing my individual views.

*576A great many authorities have been cited to us by the respective parties, all of which I have examined, as well as a number of others. It seems to me that the application of some well-settled principles will prove decisive of the points presented. As has been repeatedly held by this court, it is incumbent upon a complainant to allege in his bill every fact clearly and definitely that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. The facts and circumstances upon which a complainant bases his claim and right to the relief which he seeks are matters peculiarly within his own knowledge, and he will be presumed to have stated them as strongly and favorably to himself as he could, exercising his privilege of selecting his own language in which to couch them. Hancock v. Hancock, 55 Fla. 680, 45 South. Rep. 1020, 15 L. R. A. (N. S.) 670; Knight, Norman & Co. v. Turner Cypress Lumber Co., 55 Fla. 690, 45 South. Rep. 1016; King v. Hooton & Watson, 56 Fla. 805, text 816, 47 South. Rep. 394, text 398; Gillespie v. Chapline, 59 Fla. 500, 52 South. Rep. 722. We have likewise frequently held that in a suit in equity, as well as in an action at law, every pleading, when properly attacked, is to be construed most strongly against the pleader thereof; so, in passing upon a demurrer to a bill in equity, every presumption is against the bill. Murrell v. Peterson, 57 Fla. 480, 49 South. Rep. 31, wherein prior decisions of this court will be found cited. These principles have been held to be especially applicable to bills seeking an injunction and peculiarly applicable to bills seeking the reformation of a deed or other written instrument. Knight, Norman & Co. v. Turner Cypress Lumber Co., supra, and cases therein cited. It is further true, as we held in Murrell v. Peterson, supra, that where there are contradictory or inconsistent allega*577tions in a bill, its equity will be tested by the weaker rather than by the stronger allegations, or, as we held in the opinion on rehearing in Hull v. Burr, 58 Fla. 475, 50 South. Rep. 754, any indefinite or uncertain allegations that may appear in a bill of complaint should be taken most strongly against the pleader. As we also held in Murrell v. Peterson, supra, a court of equity cannot grant relief when the complainant’s own showing in his bill demonstrates a want of equity in* his prayer.

As is stated by the appellants in their brief, which statement practically accords with that made by the appellees in their brief, “The bill prays for a decree that there never was any contract of sale and that the entire deed may be canceled, or (which in effect is a prayer for reformation) that Crosby may be required to convey the McMillan portion of the tract upon a payment to him of an amount upon the basis of the amount paid by him with interest, and that the portiofi of the deed containing personal covenants of warranty may be canceled, and for injunction.”

It .is true, as the appellees contend and as we held in Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 South. Rep. 566, 74 Amer. St. Rep. 124: “Where the pleader is in doubt as to whethér he is entitled to one kind of relief, or another, upon the facts'alleged in a bill in equity, he may frame the prayer in the alternative, so that if he is not entitled to the one, he may obtain the other. If, in such case, upon the allegations of the bill the complainant is entitled to either kind of relief prayed, the defendant cannot demur because he is not entitled to the other; the remedy being to insist at the hearing that complainant be confined to such relief only as he is entitled to under all the circumstances of the case as then presented.” Also see Murrell v. Peterson, 57 Fla. 480, text 490, 49 South. Rep. 31, text 34.

*578Certain well defined distinctions exist between some of the principles governing cases wherein a reformation and those wherein a cancelation or rescission of a written contract is sought, which distinctions I shall have occasion presently to notice, but certain principles are alike applicable to each class of cases. It is elementary that there must be a meeting of two minds in one and the same intention in order that there may be a contract. Knight, Norman & Co. v. Turner Cypress Lumber Co., 55 Fla. 690, text 699, 45 South. Rep. 1016, text 1019; Etheredge v. Barkley, 25 Fla. 814, 6 South. Rep. 861; Strong & Trowbridge Co. v. Baars & Co., 60 Fla. 253, 54 South. Rep. 92. As we also held in Perry v. Woodberry, 26 Fla. 84, text 90, 7 South. Rep. 483, “When parties deliberately put their engagements in writing in such terms as import á legal obligation, without any uncertainty as to the object or extent of the engagement, it is, as between them, conclusively presumed that the whole engagement and the extent and manner of the undertaking is contained in the writing. ® * if No other language is admissible to show what they meant or intended, and for the simple reason that each of them ^ has made that to be found in the instrument the agreed test of his meaning and intention.” This statement of the law we quoted and approve^ in Knight, Norman & Co. v. Turner Cypress Lumber Co., supra. Also see to the same effect Jackson v. Magbee, 21 Fla. 622; Franklin v. Jones, 22 Fla. 526; Jacobs v. Parodi, 50 Fla. 541, 39 South. Rep. 833; Griffin v. Societe Anonyme La Floridienne J. Buttgenbach & Co., 53 Fla. 801, 44 South. Rep. 342. We have also held that “while equity will reform a written instrument when by a mistake it does not contain the true agreement of the parties, yet it will only do so when the mistake is plain and the proof full and satisfactory. The writing should be deemed to be the sole expositor of the intention of the parties until the contrary is established *579beyond a reasonable doubt.” Knight, Norman & Co. v. Turner Cypress Lumber Co., supra, which cites and follows prior decisions of this court. It will be observed that in the several opinions of this court treating of the reformation of written instruments for mistake it is either directly held or necessarily implied that suck mistake is the mistake of both parties to the agreement. In other words, the mistake must be mutual in order to warrant a reformation of the instrument. In so holding we are squarely in line with the great weight of authority, as the citations in our opinions from other jurisdictions will clearly show. I would again refer to Citizens’ National Bank of Attica v. Judy, 146 Ind. 322, 43 N. E. Rep. 259. Also see 4 Pomeroy’s Eq. Juris. (3rd ed.) section 1376; Ibid. Vol. 6, section 675; 34 Cyc. 907; 24 Amec. & Eng. Ency. Law (2nd ed.) 649, where a full statement of the law may be found and many cases cited in the notes. Mutuality of the mistake forms the line of demarkation between the reformation or rectification of written instruments and their rescission or cancelation. Both classes of cases come under the head of mistake, but, while mutuality of the mistake is necessary in order to warrant reformation or rectification, cancellation or rescission may be decreed where the mistake is unilateral, as the authorities already cited show. It is also true, as we have held, that equity has jurisdiction either to reform or cancel instruments obtained through fraud. Hargis v. Campbell, 14 Fla. 27, and Griffin v. Societe Anonyme la Floridienne, supra. But since no fraud is alleged in the bill, the question of fraud may he eliminated from our consideration. As was held in Paget v. Marshall, L. R. 28 Ch. Div. 255, “Where there is mutual mistake in a deed or contract the remedy is to rectify by substituting the terms really agreed to. Where the mistake is unilateral the remedy is not *580rectification but rescission, but the court may give to a defendant the option of taking what the plaintiff meant to .give in lieu of rescission.” This is a well reasoned and instructive case. Also see Kerr on Fraud and Mistake ■(Amer. ed) page 422; 6 Pomeroy’s Eq. Jur., sections 675 and 676; Mortimer v. Shortall, 2 Drury & Warren, 363; Hearne v. Marine Ins. Co., 20 Wallace (U. S.) 488, text 490, 491; Moffett, Hodgkins & Clarke Co. v. City of Rochester, 178 U. S. 373, 20 Sup. Ct. Rep. 957; Prindle v. Board of Education, 115 N. Y. Supp. 888, 61 Misc. Rep. 533. It has also been held that “to justify the reformation of a deed for mistake, the mistake must have been mutual or else the result of fraud on the part of the party not mistaken, the evidence must be clear, satisfactory, and free from reasonable doubt, and the party seeking reformation must be free from negligence.” Pyne v. Knight, 130 Iowa 113, 106 N. W. Rep. 505. Also see Persinger’s Adm’r v. Chapman, 93 Va. 349, 25 S. E. Rep. 5, wherein it was said: “Equity will not extend its aid to one who has been guilty of culpable negligence. It requires that the party who asks relief on the ground of mutual mistake shall have exercised at least the degree of negligence which may be fairly expected from a reasonable person.” This language was quoted with the prefatory statement, “It is undoubtedly true,” in American Mining Co. v. Basin & Bay State Mining Co., 39 Mont. 476, 104 Pac. Rep. 525, text 527. Also see Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. Rep. 668.

I must now consider more specifically under what circumstances and upon what grounds a cancellation or rescission of a contract may be had, which remedy differs from reformation or rectification, as we have seen, in that the former may be had when the mistake is unilateral. The authorities already cited discuss this matter to a certain extent. It need not be said that it requires something *581more than a mere mistake of even a very material fact to the transaction in order to warrant a court of equity in decreeing the cancelation or rescission of a written contract. A clear and succinct statement of the law relating thereto may be found on page 271 of Eaton on Equity, which is as follows:

“A mistake of fact of one of the parties to a contract, as to the subject-matter thereof, cannot be relieved against in equity unless (a) the fact is material to the transaction, (b) The mistake is not due to the culpable negligence of the mistaken party, (c) The fact is one which the party who has knowledge of it is bound to disclose.”

Of course this is a broad and general statement. See the discussion thereof which follows in the work cited and the authorities referred to in the notes. As is said on page 273, “Equity will not extend its aid to relieve a mistaken party who has been guilty of culpable negligence. Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at. least the degree of diligence which may be fairly expected from a reasonable person.” This principle has been generally recognized and finds ample support in the reported cases. See Conner v. Welch, 51 Wis. 431, 8 N. W. Rep. 260; Grymes v. Sanders, 93 U. S. 55; Keith v. Brewster, 114 Ga. 176, 39 S. E. Rep. 850; Vallentyne v. Imigration Land Co., 95 Minn. 195, 103 N. W. Rep. 1028; Graham v. Berryman, 19 N. J. Eq. 29; Pope v. Hoopes, 84 Fed. Rep. 927; Grant Marble Co. v. Abbot, 142 Wis. 279, 124 N. W. Rep. 264. In Bidder v. Carville, 101 Me. 59, 63 Atl. Rep. 303, 115 Amer. St. Rep. 303, it was held as follows: “A court of equity may decree the rescission of a contract for a mistake which is unilateral, but the power should not be exercised against a party whose conduct has in no way contributed to or induced the mistake, and who will ob*582tain no unconscionable advantage thereby. If a grantor gives a warranty deed of land which he does not own, under the mistaken belief that he has title thereto, the deed will not be canceled, when no fraud, falsehood, misrepresentation, or concealment on the part of the grantee is alleged. Equity does not relieve against mistakes which ordinary care would have prevented. Conscience, good faith, and reasonable diligence are necessary to call the powers of a court of equity into activity.” A number of additional authorities may be found in the note on page 483 of 4 L. R. A. Also see authorities cited in note on page 500 of 65 Amer. State Rep., and Judge Freeman’s cogent statement. He is speaking of reformation, but what he says is also applicable to rescission or cancelation. “If a party to a deed, mortgage, contract of insurance, or other contract, through his own negligence, signs it without knowing or understanding its contents, when he has an opportunity to do so, a court of equity will not reform it so as to make it express his alleged understanding of what it was to contain, for an error which is the result of inexcusable negligence is not a mistake from the consequences of which equity will grant relief. The bare fact that one does not read a contract or know its contents, when he executes it, does not relieve him from it. If he can read his contract, his failure to do so is such gross negligence that it conclusively estops him from denying knowledge of its contents, unless he was dissuaded from reading it by some trick, artifice or fraud of the other party to the agreement.” See also Eldridge v. Dexter & P. R. Co., 88 Me. 191, 33 Atl. Rep. 974; Metcalf v. Metcalf, 85 Me. 473, 27 Atl. Rep. 457; The Duke of Beaufort v. Neeld, 12 Clark & F. 248, text 286.

I have stated the general rule governing cancellation or rescission for unilateral mistake, and have cited a number *583of cases wherein the same has been applied and the principles discussed. Here, as elsewhere, the reported cases are not in entire harmony. They could hardly be expected to be univocal, for judges will differ in applying an abstract principle or general rule to concrete cases, wherein the facts and circumstances are more or less variant. So it has been held that “mere negligence or omission to read or know the contents of a written instrument before execution is not necessarily a bar to cancelation thereof. Relief in such case is proper if the instrument, through mistake, fails to accomplish the purpose intended.” Taylor v. Godfrey, 62 W. Va. 677, 59 S. E. Rep. 631. Also see Smith v. Owens, 63 W. Va. 60, 59 S. E. Rep. 762; Hale v. Hale, 63 W. Va. 609, 59 S. E. Rep. 1056. Other cases along the same line and to the like effect could readily be cited, but a careful consideration of the application of the principle to the different facts and circumstances disclosed in the respective cases will usually show a recognition of the general rule and the existence of special or peculiar conditions, for example, fraud, overreaching, or other unconscionable or inequitable conduct on the part of the party against whom relief is sought. See 6 Pomeroy’s Eq. Jur., sections 676 and 680, and Ibid. vol. 2, section 856. I do not Avish to be understood as approving all that is said in the cases which I have cited, nor do I regard them as being equipollent, but they will be found serviceable and instructive.

Having set forth the principles which I think control and govern, I must now proceed to apply them to the instant case, but before doing so I wish to call attention again to Knight, Norman & Co. v. Turner Cypress Lumber Co., supra. We held therein that “the allegata and probata must reciprocally meet and correspond, the issues being made by the pleadings to which the proof must be con*584fined. If the proof must be full and satisfactory in order to warrant a court of equity in decreeing the reformation of a written instrument, and such proof must correspond to and with the allegations upon which such reformation is sought, it is an obvious corollary that such allegations must likewise be full and satisfactory.” Since the question which we are called upon to decide is the correctness of the order in overruling the demurrer to the bill, we must bear in mind that the demurrer, which is to the whole bill, operates as an admission that all the allegations in the bill which are well pleaded are true. If the bill makes any case for equitable relief, the demurrer was properly overruled. City of Miami v. Shutts, 59 Fla. 462, 51 South. Rep. 929.

A careful reading of the bill discloses that it fails to allege that the mistake set forth, from the consequences of which the complainants seek relief, was mutual. In fact, the bill and accompanying exhibits would seem to negative any mutuality in such mistake. The deed to the defendant, L. G. Crosby, would seem to be just such an instrument as he expected to obtain and thought that he was getting, both in the way of the land described therein and the personal covenants of the grantors therein inserted. I am unable to find any charge or allegation in the bill to the contrary. This being true, the complainants have failed to show that they were entitled to a reformation or rectification of the deed. As I have already had occasion to say, no fraud of any kind is charged against the defendants, so the question of fraud may be eliminated from our consideration. We have also seen that many authorities hold that “If one sign a written contract without acquainting himself with its contents, he is estopped by his own negligence from asking relief against its obligation, if his signature be procured without fraud.” See Ferrell v. Fer*585rell, 53 W. Va. 515, 44 S. E. Rep. 187; Fulton v. Messenger, 61 W. Va. 477, 56 S. E. Rep. 830; Cape Fear Lumber Co. v. Matheson, 69 S. C. 87, 48 S. E. Rep. 111; Kansas City Packing Box Co. v. Spies, Tex. Civ. App. , 109 S. W. Rep. 432; Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N. W. Rep. 923, 105 Am. St. Rep. 1016; Gibson v. Brown, Tex. Civ. App. , 24 S. W. Rep. 574; May v. Platt, 1 L. R. Ch. Div. (1900) 616, text 623. It further would seem that the complainants and the defendant, Crosby, were dealing with each other at arm’s length, and that no relation of trust or confidence existed between them, therefore, neither was required in the absence of inquiry, to disclose facts which were equally within the means of knowledge of the other party. Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. Rep. 668. Neither do we find wherein the bill charges or alleges any overreaching, unfair dealing or inequitable or unconscionable conduct upon the part of Crosby. The alleged mistake would clearly seem to be not only unilateral, but due entirely to the culpable negligence and inexcusable carelessness of the complainants. If any one of them had only taken the necessary time and trouble to read the deed .before executing it, the mistake both in the matter of the description of the land and the personal covenants would have been at once discovered. All the facts were within reach of the complainants, and they had but to open their eyes to see them. Grant Marble Co. v. Abbot, 142 Wis. 279, 124 N. W. Rep. 264, text 268. The fact that three of the complaining Trustees, together with Rev. W. Q. Yreeland, presumably the pastor in charge of the church, were appointed as a committee to negotiate and conduct the sale of the property and that J. N. Andrews, a member of such committee, prepared the deed which was executed cannot avail. A. M. McMillan, another member of such committee, had previously purchased a portion of the lot in question from the Trustees *586and had received a deed thereto, and yet, with a full knowledge of such facts, he joins with his co-trustees in executing the deed without reading it, by which was conveyed the portion of such lot which he had previously purchased, and he personally bound himself, as did his co-trustees, by covenants therein to warrant and defend the title thereto. Could grosser carelessness or more culpable negligence be well imagined? I must confess that I do not fully understand what locus standi McMillan as an individual and his wife have as co-complainants in the case, and it may be that their joinder as such renders the bill multifarious. Since this point is not raised I do not pass upon it, but see Murrell v. Peterson, 57 Fla. 480, 49 South. Rep. 31, and Arcadia Mercantile Co. v. Branning, 59 Fla. 428, 52 South. Rep. 588. I do not see wherein the allegations in the bill as to the outstanding but unrecorded conveyances from McMillan to E. D. Beggs, from Beggs to Mattie E. McMillan and from A. M. McMillan to her, as to which it is not alleged that the defendants had any knowledge or notice, add to or strengthen the equities of the complainants. Neither does the fact that McMillan had fenced that portion of the lot which he had purchased and taken possession thereof strengthen the case. It is not alleged that the possession of such lot had changed from McMillan to that of his wife. See Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. 897. Section 2589 of the General Statutes of 1906 gives the husband the care and management of the wife’s property, which would entitle him to the possession thereof.

I have already protracted this opinion and must shortly bring it to a close. I cannot be expected to treat fully all the points presented and argued, so shall conclude with a few general statements relating to other points and the citation of authorities bearing thereon. Although the deed in question is signed by the trustees individually, the word *587trustees not being added after their signatures, which is generally done, since the body of the deed recites that the grantors therein are trustees, such deed is good as a conveyance from the trustees and passes whatever title they have as such. Boggess v. Scott, 48 W. Va. 316, 37 S. E. Rep. 661. As to the binding force of the personal covenants and that the grantors are estopped thereby, see Bloom v. Wolfe, 50 Iowa 286; Mitchell v. Hazen, 4 Conn. 495; North v. Henneberry, 44 Wis. 306; Hitchcock v. Southern Iron & Timber Co., Tenn. Ch. App. , 38 S. W. Rep. 588; Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83; Duval v. Craig, 2 Wheaton (U. S.) 45. Also see note on page 224 of 17 Am. Dec.

Upon the question of reformation and rescission generally, the following additional authorities will be found helpful: Kennerty v. Etiwan Phosphate Co., 21 S. C. 226, 53 Am. Rep. 669; Hope v. Bourland, 21 Okla. 864, 98 Pac. Rep. 580; Benn v. Pritchett, 163 Mo. 560, 63 S. W. Rep. 1103; Dougherty v. Dougherty, 204 Mo. 228, 102 S. W. Rep. 1099.

I have given this case .my most patient and careful consideration. It follows from what I have said that I have reached the conclusion that the bill not only fails to state a case for reformation or rectification, but that it likewise fails to make or state a case for cancellation or rescission, therefore the court erred in not sustaining the demurrer thereto. I think that the order appealed from should be reversed and the case remanded, with directions to sustain the demurrer to the bill.

Cockrell, J., concurs in the foregoing dissent.