Gillespie v. Sawyer

• Citation: 15 Neb. 536,19 N.W. 449
• Parties: GILLESPIE v. SAWYER AND OTHERS.
• Decision Date: 27 May 1884
• Court: Supreme Court of Nebraska

15 Neb. 536

19 N.W. 449

GILLESPIE

v.SAWYER AND OTHERS.

Supreme Court of Nebraska.

Filed May 27, 1884.

Error from Lancaster county.

Marquette, Deweese & Hall, for plaintiff.

J. R. Webster, for defendants.

REESE, J.

This is an action in ejectment. The petition contains the usual averments. The answer denies the facts alleged in plaintiff's petition, and presents several defenses; one of which is, in substance, that they purchased the real estate in dispute on the twenty-ninth day of July, 1876, of one L. C. Burr, who was the owner of said premises by title derived from the plaintiff's grantor; that at the time of their purchase, and for a long time thereafter, they had no knowledge of the plaintiff's having, or claiming to have, any interest in said land; that they purchased in good faith, and for a valuable consideration; that at the time of said purchase they took immediate possession of the land, which was unimproved, and have, from that time to the present, occupied the same as their home, making valuable improvements thereon, to the extent of $4,000, and have ornamented and beautified it by grading and filling up a ravine running through it, and by planting out many fruit, ornamental, and shade trees, etc.; and that during all that time the plaintiff has resided on an adjoining block, and has witnessed their labors and expenditures, but did not at any time notify them of his pretended claim, until immediately before the commencement of this action, or that he claimed any interest in the premises. Trial was had to the court, resulting in a finding and judgment in favor of the defendants; and plaintiff now brings the case into this court by petition in error.

As we view the case, the first question requiring attention is whether or not the deed from Editha J. Dawson--the common source of title--to the plaintiff, which was on record at the time of defendants' purchase, was sufficient to import constructive notice to the defendants of the plaintiff's rights. The description of the premises contained in the plaintiff's deed is as follows: “That piece or parcel of land adjoining Lincoln, in the county of Lancaster and state of Nebraska, bounded by a line commencing at a point five chains south of the north-east corner of the east half of the south-west quarter of section number twenty-five, (25,) in township number ten, (10,) range six east; running thence two chains and sixty-six links south to the continuation of ‘F’ street, in Capitol addition to Lincoln; thence along ‘F’ street in said addition ten (10) chains; thence north two chains and sixty-eight links to the corner of the five-acre tract purchased by said Gillespie of Jacob Dawson; thence west to the place of beginning.” By following the calls, courses, and distances in this deed as they are given, it is clear that it fails to describe any tract of land, as they fail to close. The plaintiff insists that by following the line to the fifth call, which is described as “the place of beginning,” and taking this as the starting point, and following the calls, courses, and distances in their inverse order, it will describe the tract in dispute, since there is nothing in the deed indicating the course along ‘F’ street. This is perhaps true. The defendant insists that if we begin at the first call, the starting point being definitely given, it is impossible to so construe the description as to include this tract of land. This is also true. The first call in the deed fixes the starting point “five chains south of the north-east corner of the east half of the south-west quarter of section twenty-five.” Were this action between the original parties to the deed, the intention of the parties might with propriety be inquired into; but in this case, where the rights of innocent third parties intervene, we think this call cannot be changed. “Five chains south of the...