J. P. BYRD, ET UX.,
v.
MOLLIE W. SMITH, ET VIR.
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The Florida Supreme Court affirmed the dismissal of a bill for rescission of an executed real estate exchange agreement. Complainants alleged they were misled about the property's sewerage connection, condition, and mortgage interest rate, but the court held that because they had opportunity to inspect the property before the exchange and delayed over two years in seeking rescission, they lacked equitable standing.
The bill was properly dismissed for want of equity. Where a party seeking rescission for misrepresentation shows by their own pleading that they had opportunity for inquiry at the time of exchange and ample opportunity to discover the alleged false representations, and has delayed more than two years in seeking rescission, a decree dismissing the bill is proper.
“Where a party charging misrepresentation as a ground for rescission of an executed exchange of lands, shows by his own pleading that at the time of exchange he was given an opportunity to institute inquiry for himself, and had ample opportunity at that time for obtaining information as to the real facts concerning that about which his bill for rescission now complains, and that he has delayed for more than two years the institution of any attempt to rescind on the ground that he has been theretofore misled by the alleged misrepresentations as to facts, about which he should have earlier learned the truth, a decree dismissing such bill for want of equity is proper and will be affirmed by an appellate court.”
Establishes the controlling legal standard that equity will not grant rescission where the party had opportunity to discover the facts and unreasonably delayed in seeking relief.
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Join FLexlaw to unlock all legal intelligenceAppellants purchased real estate through an exchange agreement with respondents approximately 2.5 years before filing their bill. The bill alleged tha…
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— Appellants, as complainants below, filed their bill in equity to rescind an executed agreement for the exchange, of real estate in Hillsborough County. The chancellor dismissed the bill for want of equity and this appeal is concerned with that decree.
The bill undertakes to state an equitable course of action for rescission of an executed agreement to exchange real estate, and alleges that some two and one-half years prior to its filing, the defendant had falsely represented to complainant that the real estate conveyed by him as his part of the exchange was connected with the sewerage system of the City of Tampa, whereas it was only connected with a septic tank; that it was represented that the building was in good condition, whereas it leaked in time of rain, and that the exchange agreement provided for 61/2 per cent interest per annum on the mortgage to be given back to defendant by complainant as part of the trade, whereas it actually was' made to bear 7 per cent interest.
■ The bill shows affirmatively that complainant was “shown” the premises involved prior to exchange of the deeds, and that as confidential relationship existed between the parties at the time the exchange- agreement was made, tender back to the defendant of the whole consideration received by complainant in the exchange was not incorporated in the bill, nor alleged to have been made, although an offer to do equity was stated in general terms.
The prayer was that after an accounting should be ordered and had, that a vendee’s lien in complainant’s behalf might be decreed on the property exchanged and in case of failure *26of the defendant to discharge such lien by payment, that the property be ordered sold to satisfy the amounts found to be due to complainant and that the notes and mortgage of complainant that defendant then and theretofore had and held, should coincident therewith be delivered up and cancelled.
Our study of the pleading involved convinces us that the bill was properly dismissed on the authority of Glass v. Craig, 83 Fla. 408, 91 Sou. Rep. 332; Stokes v. Victory Land Co., 99 Fla. 797, 128 Sou. Rep. 408; George E. Sebring Co. v. Skinner, 100 Fla. 315, 129 Sou. Rep. 759, and similar cases.
• Where a party charging misrepresentation as a ground for rescission of an executed exchange of lands, shows by his own pleading that at the time of exchange he was given an opportunity to institute inquiry for himself, and had ample opportunity at that time for obtaining information as to the real facts concerning that about which his bill for rescission now complains, and that he has delayed for more than two years the institution of any attempt to rescind on the ground that he has been theretofore misled by the alleged misrepresentations as to facts, about which he should have earlier learned the truth, a decree dismissing such bill for want of equity is proper and will be affirmed by an appellate court.
• The citations of Stephens v. Orman, 10 Fla. 9; Riverside Inv. Co. v. Gibson, 67 Fla. 130, 64 Sou. Rep. 439, and Hart v. Marbury, 83 Fla. 317, 90 Sou. Rep. 173, relied on by appellants as supporting the equity of their bill, deal with facts which are not at all analogous to those set up in the pleading that was dealt with in the present case.
We find no error in the decree appealed from, so the same is affirmed.
*27Affirmed.
Ellis and Terrell, J. J., concur.
Whitfield, P. J., and Brown and Buford, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Windham v. Windham, 152 Fla. 362 (Fla. 1943)…counsel to represent him. The advice of counsel and a study of the record would have thrown much satisfactory light on the question raised by Helen Windham. See Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893; Byrd v. Smith, 114 Fla. 24, 152 So. 851. It is contended that the inadequacy of consideration, mental weakness and the false and fraudulent misrepresentations alleged to have been made by Helen Windham to R. S. Windham are each established by the testimony and controlled by…
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Robson Link & Co. v. Leedy Wheeler & Co., 154 Fla. 596 (Fla. 1944)…91 So. 332; Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408; Camar-dello v. Courtright, 126 Fla. 536, 171 So. 225; Peacock Hotel Co. v. Shipman, 103 Fla. 633, 138 So. 44; Geo. E. Sebring Co. v. Skinner, 100 Fla. 315, 129 So. 759; Byrd v. Smith, 114 Fla. 24, 152 So. 851; and Hirschman v. Hodges, 59 Fla. 517, 51 So. 550. These cases involved real estate transactions, and in our opinion are not quite in point here. The last ease cited, Hirschman v. Hodges, contains a very good statement of certain gener…
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Emil Morton v. Zuckerman-Vernon Corp., 290 So. 2d 141 (Fla. 3d DCA 1974)…ground for rescission was shown, in view of the provisions of the contract which are shown below. See Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408; Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729, 734; Byrd v. Smith, 114 Fla. 24, 152 So. 851, 852; Johnson v. Green, Fla. 1951, 54 So. 2d 44. The contract upon which the property was purchased, a copy of which was attached to the complaint, stated in paragraph 10 that the property was being purchased “as is” except as provided…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stokes v. Victory Land Co., 99 Fla. 795 (Fla. 1930)
- Glass v. Craig, 83 Fla. 408 (Fla. 1922)
- George E. Sebring Co. v. Skinner, 100 Fla. 315 (Fla. 1930)
- Hart v. Marbury, 82 Fla. 317 (Fla. 1921)
- Stephens v. Orman, 10 Fla. 9 (Fla. 1862)
- Riverside Inv. Co. v. Ellis Gibson, 67 Fla. 130 (Fla. 1914)