Opinion
No. 74-903.
March 18, 1975.
Appeal from the Dade County Circuit Court, Raymond G. Nathan, J.
Bell Bell, Coral Gables, and Iris Y. Bell, Englewood, for appellants.
William J. Ingraham, Jr., Miami, for appellee.
Before BARKDULL, C.J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
This appeal by Ralph C. Passio, Jr., and Clara Passio, his wife, seeks review of a final judgment entered at the conclusion of a trial without jury. Marry Passio brought suit to cancel a quitclaim deed given by her to her stepson, Ralph. She alleged that there was fraud and undue influence in the giving of the deed, which she thought to be a will. The trial judge entered a judgment cancelling the deed and quieting the title in Marry Passio.
On this appeal, Ralph urges that the evidence is insufficient to support the portion of the judgment cancelling the deed. Our examination of the record reveals that there is evidence which, if believed by the chancellor, is ample to support the judgment. Larnel Builders, Inc. v. Nicholas, Fla.App. 1960, 123 So.2d 284. Therefore, that portion of the judgment cancelling the deed is affirmed.
As to that portion of the judgment which quieted title in Marry Passio, the trial judge exceeded the bounds of the pleadings and the proof before him. The claim of Ralph Passio to a portion of the property may be based upon his rights, if any, growing out of a probate of the father's estate. Therefore, since the pleadings did not encompass a prayer for a judgment quieting title as to Ralph's possible claim, and the evidence does not show a trial of the issue by consent, that portion of the judgment is without basis in the record. Cf. Quigg v. Helm, 119 Fla. 693, 161 So. 55 (1935). Accordingly, paragraphs 4 and 5 of the final judgment are stricken therefrom and, as modified, the judgment is affirmed.
Modified and affirmed.