Connelly v. Smith

97 So. 2d 865
CourtDistrict Court of Appeal of Florida
DecidedNovember 7, 1957
Docket57-114
StatusPublished
Cited by15 cases

This text of 97 So. 2d 865 (Connelly v. Smith) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connelly v. Smith, 97 So. 2d 865 (Fla. Ct. App. 1957).

Opinion

97 So.2d 865 (1957)

John H. CONNELLY, as Executor of the Estate of Sam Raymond, Deceased, Appellant,
v.
Alleen SMITH, Appellee.

No. 57-114.

District Court of Appeal of Florida. Third District.

November 7, 1957.
Rehearing Denied November 29, 1957.

Fogle & Fordham, Miami, for appellant.

Anderson & Nadeau, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

This is an appeal from a final decree of the Circuit Court of Dade County quieting title to certain real estate.

One Sam Raymond, shortly prior to his death, executed some thirty deeds to various persons by which he transferred approximately 1,000 parcels of real estate. The appellee, Alleen Smith, received a deed made five days before the grantor's death covering two parcels, which were described in the deed as follows:

*866 "Tract 47, West of Canal, less FEC R/W, Florida Fruit Land Co.'s Subdn., in Section 29, Township 52 South, Range 40, containing 52 acres more or less, according to Plat Book 2 at Page 17, Public Records of Dade County, Florida.
"The South 66 feet of Tract 25 South and West of Canal & Ry. R/W as per Plat Book 2, at page 17, of the Public Records of Dade County, Florida."

The obvious incompleteness and ambiguity in the part of the description relating to the second of the two parcels involved prompted the controversy.

The grantee Smith sued the executor of the estate of the then deceased grantor, seeking a decree quieting title to the property and in the alternative to reform the deed to show a section, township and range. The allegations of the complaint were as follows:

"1. The plaintiff is the owner of the following described property, situated in Dade County, Florida:
"The South 66 feet of Tract 25 South and West of Canal & Ry. R/W as per Plat Book 2, at page 17, of the Public Records of Dade County, Florida, Section 3, Township 53 South, Range 40 East, Florida Fruit Land Co.'s Subdn.
by reason of a warranty deed executed and delivered by Sam Raymond, a single man, to the plaintiff during his lifetime.
"2. The said deed, when executed and delivered, did not contain any Section, Township or Range reference.
"3. The decedent owned no other property which could be confused with the property above described as shown in Plat Book 2, Page 17.
"4. The defendant claims some right, title and interest in said property.
"5. The plaintiff's rights in said property are superior to all others, and the plaintiff has paid the taxes on said property. The claim of the defendant constitutes a cloud on plaintiff's title."

The defendant executor answered and denied the plaintiff's ownership of the property, and averred: "For further answer to the complaint, defendant states that the subdivision referred to in the description above set forth, contains one hundred twenty-one (121) Tract 25's, said subdivision being a subdivision of approximately one hundred twenty-five (125) to one hundred thirty (130) sections of land that are divided in accordance with various tracts as designated on the plat; that after the recordation of the deed above described and the return of the deed to the plaintiff, the plaintiff altered said deed and the description contained thereon, by adding `Section 3, Township 53 South, Range 40 East, Florida Fruitland Co's Subn', and re-recorded said deed; that the deed, as originally recorded, was a nullity as said deed failed to describe any property with certainty."

The defendant's answer contained a counterclaim seeking to have the deed declared to be a nullity for insufficient and defective description, and for a decree quieting title in the defendant.

The case was tried before the court. The plaintiff produced a surveyor, a licensed civil engineer, who testified that from the description in the deed he was able to locate two parcels, either one of which could be the property in question. They were section 33, township 52 south, range 40 east, and section 3, township 53 south, range 40 east. The defendant produced a surveyor who had attempted to determine the location of the property from the plat and had been unable to do so. He was asked whether the plat showed "the canal" cutting through any tracts numbered 25. His answer was that the plat showed the canal cutting through a tract numbered 25 in section 17, township 52 south, range 39 cast and a tract *867 numbered 25 in section 11, township 53 south, range 40 east. He further testified that his survey did not show a canal cutting through those locations as indicated on the plat, but on the contrary, he found a canal cutting through tracts numbered 25 in the same two sections as so found by the plaintiff's surveyor. However, those locations where the canal cut across tracts numbered 25, both lie north and east of the canal in question, according to the plat, rather than south and west of the canal as required by the deed description.

The best the surveyors could do was to locate two separate parcels either one of which they said could come within the description. This attempted location of the property by these surveyors was of no help in this case, because they could not locate any one parcel as being the one conveyed. Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Martin v. Kitchen, 195 Mo. 477, 93 S.W. 780. The surveyors were directed to look for tracts numbered 25 which were traversed by a canal. They proceeded on the assumption that the description did not refer to a tract 25 lying south and west of a canal, but to the south 66 feet, lying south and west of a canal in a tract 25 which itself might or might not be south and west of the canal. The description furnished no basis for that assumption. For example, the description did not say the south 66 feet lying south and west of a canal in tract 25, etc. The description said the "south 66 feet of tract 25 south and west of canal", etc. A more reasonable interpretation is that the language places the tract 25 which it referred to as being south and west of the canal — not just the south 66 feet of the tract as being south and west of the canal.

The plat was designated as "Florida Fruit Land Company's Subdivision No. 1, in Dade County, Florida," and was dated February 1, 1911. It covered several hundred square miles. It was checkerboarded by sections, and, with some omissions, the alternate sections were cut up into 64 tracts to the section and numbered consecutively. The description in the deed referred to a tract 25 south and west of a canal and railroad right of way, according to that plat.

The plat shows no railroad right of way. It does show three canals. Two of the canals run from northwest to southeast. One of the canals runs east and west. What we will refer to as the first canal commences near the northwest corner of the plat and runs across the north part in a southeasterly direction. It does not traverse any tracts numbered 25, but the plat reveals a total of 101 sections which could be described as lying south and west of that canal in which there were tracts numbered 25. The second canal which runs east and west near the center of the plat need not be considered.

As to the third canal, which crossed diagonally from northwest to southeast in the southern or lower part of the plat, there are a total of 21 sections lying south and west of that canal, in which there are tracts numbered 25.

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Bluebook (online)
97 So. 2d 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connelly-v-smith-fladistctapp-1957.