Flynn v. Herye
| Decision Date | 09 July 1877 |
| Parties | MICHAEL FLYNN, Plaintiff in Error, v. JOHN HERYE ET AL., Defendants in Error. |
| Court | Missouri Court of Appeals |
1. H. purchased of the executor, who sold under a power in the will, forty feet of ground in the middle of a block belonging to seven heirs. The deed was not delivered until after H. had erected improvements covering the entire forty feet, of which he was put in possession. By mistake, the deed placed the lot purchased six feet south of the possession of H. F. subsequently bought of some of the heirs an undivided three-sevenths interest in the property remaining unsold; and, in partition, the lots bounding north and south the lot sold to H. were assigned to F. Before final decree F. discovered that the block contained 306 feet front, instead of 300, as supposed, it being this mistake in quantity which caused the erroneous description in the deed to H. F. caused the mistake in quantity to be corrected in the partition suit by adding six feet to his lot bounding H. on the north. F. then commenced ejectment for the six feet occupied by H. on the south, and for which he had no deed. The court sustained the equitable defence set up by H., and decreed that, in conveying to F. the six feet on the north included in his deed, the deed should be reformed in accordance with the provision. Held, that F. could not recover in ejectment; that H. had an equity for the reform of his deed, but that the decree requiring a conveyance by H. was erroneous, and that a decree reforming the deed in accordance with the possession should be made, after the heirs, whose interests had not been acquired by deed, had been made parties to the suit.
2. One who purchases the right, title, and interest of copartners in land before partition, takes an inchoate title only to the particular lot which he afterwards acquires by partition, and takes subject to equities existing at the time between the heirs whose interest he has purchased and third parties.
ERROR to St. Louis Circuit Court.
Reversed and remanded.
J. H. WIETING, for plaintiff in error, cited: Youngblood v. Vastine, 46 Mo. 239; Callaway v. Vast, 50 Mo. 420; Story's Eq. Jur., secs. 165, 176; Kerr on Fraud, 436; Rhodes v. Outcault, 48 Mo. 367; Bispham's Eq., sec. 191.
B. W. PRESCOTT and H. E. MILLS, for defendants in error: Deeds, mistake in, and correction.-- Leitensdorfer v. Delphy, 15 Mo. 160; Hunt v. Rousmainer, 1 Pet. 13; Morgan v. Rouse, 53 Mo. 219; Rhodes v. Outcault, 48 Mo. 367; Young v. Coleman, 43 Mo. 179. Notice.--Kerr on Fraud, 419; Schwickerath v. Cooksey, 53 Mo. 75; Story's Eq. Jur., sec. 165; 12 Serg. & R. 389; Stoffel v. Schroeder, 62 Mo. 147; Mann v. Best, 62 Mo. 473; Major v. Burkly, 51 Mo. 227; Shumate v. Reavis, 49 Mo. 333; Bispham's Eq., sec. 268; 2 Ld. Cas. in Eq. 127; Livermore v. Blood, 40 Mo. 48; Haywood v. Insurance Co., 52 Mo. 81; 11 Wall. 365. There may be an equitable defence to an action of ejectment.-- Hayden v. Stewart, 27 Mo. 286; Tibeaw v. Tibeaw, 19 Mo. 78; Maguire v. Vice, 20 Mo. 429; Sutton v. Mason, 38 Mo. 120; Canman v. Johnson, 20 Mo. 104; Moak's Van Sant. Pl. 587; Cythe v. LaFontaine, 51 Barb. 186. May ask for a correction of deed in defence. Sutton v. Mason, 38 Mo. 120; Cravy v. Goodman, 12 N. Y. 266; Phillips v. Graham, 17 N. Y. 271; Dobson v. Pierce, 12 N. Y. 156.
This is an action of ejectment for six feet four inches of ground in block 25 of Eiler's survey of Carondelet, brought against defendant Herye. The defendant Herye sets up an equitable defence. It appears from the pleadings, evidence, and stipulation of record that one Motier died, leaving seven children, and owning the greater part of block 25 in Carondelet, which block was supposed to front 300 feet on Main Street, but was discovered, in the course of the transactions which will be related, to contain a frontage of 306 4/12 feet. Motier directed his executor, the defendant Dorman, to sell so much of this land, less than fifty feet, as should be expedient, to pay debts. Accordingly, on May 2, 1870, Dorman, as executor of Motier, sold forty feet fronting on Main Street to defendant Herye. These forty feet were nearly in the middle of the block, beginning 125 feet south of Main Street, and running thence south forty feet, which were marked out to him by Dorman by lines on the curbstone, and at once proceeded to erect there a brick building occupying the whole front of forty feet. A few months afterwards, and when this building was half completed, Herye received and recorded his deed from Dorman. In making the description in this deed, as the block was supposed to front 300 feet, the conveyance described the lot as beginning at a point 135 feet north of Vine Street, and running thence north forty feet. As the block in fact contained 306 4/12 feet, this description brought the lot conveyed six feet four inches south of the actual occupation of Herye; and it is these six feet four inches of Herye's occupation which lie south of the description in his deed which are in controversy in this suit.
In 1873 the plaintiff, Flynn, who resided in Washington County, bought of three of the heirs of Motier their interest, as heirs of their deceased father, in the property in block 25, being an undivided three-sevenths; and, on motion, was substituted as party defendant in partition proceedings then pending amongst the Motier heirs. During that year Mr. Flynn was twice in Carondelet, examined and made enquiries about the property, saw Herye's house, and learned from him that he had purchased of the executor. By the commissioners in partition Flynn was assigned the lots immediately adjoining the Herye purchase on the north and south, being Nos. 17 and 19 on the plat. Flynn, or his attorney, discovered the error in the measurement of the block before final decree in partition; and, on motion of Flynn, the report of commissioners was amended so as to make lot 17, assigned to Flynn, thirty-one feet four inches, instead of twenty-five feet, as it was originally reported. These measurements and changes are made intelligible by the following plat, [see p. 363] which was used in the argument of the cause.
The lot bounded by the light lines is the lot actually occupied by Herye. The forty-foot lot bounded by the black lines is the lot according to the description in Herye's deed. The numbers of the lots are the numbers of the commissioners' report in partition of the Motier estate.
The final decree in partition was made in May, 1874; and Flynn swears that he then learned for the first time that Herye's house was on his ground, and before that he did not know exactly where any one's lines ran. Herye knew nothing of the mistake until informed of it, at a date subsequent to this, by Flynn.
On these facts the Circuit Court made a decree that, “on condition that John Herye shall tender, within ten days, to plaintiff a deed with special warranty for six feet and four inches off the southern portion of the land described in his deed...
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