Crosby v. Andrews , 61 Fla. 554 ( 1911 )

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 grantors 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A deed of conveyance may be rescinded or canceled for a negligent mistake of fact that is unilateral where the negligence is not a breach of legal duty and the mistake is material and made under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 he 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.