8 D.C. 107 (D.C.D.C. 1873), 3040, Fenwick v. Bruff

Docket NºEQUITY— 3040.
Citation8 D.C. 107
Opinion JudgeMr. Justice OLIN
AttorneyJames G. Payne for complainants: R. T. Morsell for defendant:
CourtSupreme Court of District of Columbia

Page 107

8 D.C. 107 (D.C.D.C. 1873)




EQUITY— No. 3040.

Supreme Court, District of Columbia.

April Term, 1873

I. A deed of trust containing a mistake in having the word west instead of east , contrary to the intention of both parties in the beginning of the description of the premises conveyed, will be corrected on a bill in equity filed for that purpose by the grantees, not only as against the grantors, but against the parties to a prior deed of trust upon the same premises of which said grantees had no knowledge or notice, and which was not recorded for over a year subsequent to the record of their conveyance, and the latter so corrected is decreed to be the first incumbrance upon the property.

II. The doctrine that permanent and fixed boundaries or monuments, palpable to observation, control courses and distances, applied to the facts of the case.


The opinion of the court contains a sufficient statement of the facts in this case.

James G. Payne for complainants:

It is not only the province but the duty of a court of equity to remedy a mistake in a deed, or to reform or correct the deed, not only as against the original parties to the instrument, but against their privies, against assignees, judgment-creditors, purchasers with notice, and all those claiming under the original parties in privity. Johnston vs. Jones , 1 Black 224; Rhode Island vs. Mass. 15 Peters R., 259; Simmons vs. North , 3 Smed. & Mar., 67; Wall vs. Arrington , 13 Geo. 88; Strang vs. Beach , 11 Ohio St. R., 283; Kerr on Fraud and Mistake, p. 410, note, and 420; Hans vs. Morris , 63 Pa. St. R., 637; Burke vs. Anderson , 50 Geo. 535; Baskins vs. Calhoun , 44 Ala. 582; Adams's Equity, 169, note; Whitehead vs. Brown , 18 Ala. 682; Davis vs. Rogers , 33 Me. 222; Tilton vs. Tilton , 9 New Hamp. R., 385.

The description in the deed from Bruff and wife to plaintiff sufficiently identifies the land sought to be conveyed, and distinguishes it from all other land.

As a notice it contains the requisite information to bind subsequent purchasers as well as creditors. Even if the description were uncertain or ambiguous, such purchasers and creditors were put upon inquiry as to its intention and effect. Le Neve vs. Le Neve , 2 Lead. Cas. in Equity, 179; Banks vs. Ammon , 3 Casey 172; Murdy vs. Vawter , 3 Grattan 518; Jackson vs. Post , 15 Wendell 594; Luckett vs. White , 10 Gill & J., 480; Price et al. vs. McDonald , 1 Md. 419; Godfrey vs. Beardsley , 2 McLean 412.

R. T. Morsell for defendant:

It is a general principle, in courts of equity, that where both parties claim by an equitable title, the one who is prior in point of time is deemed the better in right; and that where the equities are equal in point of merit, the law prevails. Boone vs. Childes , 10 Peters 209.

When a question arises as between two persons claiming as purchasers for valuable consideration, and there is nothing to give one a superiority over the other, the title of the defendant to protection is as good as that of the plaintiff to relief; and the former is without the jurisdiction of a court of equity, even if the latter has brought himself within it. But this equality of right will be varied in favor of the one who has succeeded in obtaining the legal estate. 1 Term Rep., 763, c.

White vs. Carpenter , 2 Paige 249; 2 Leading Cases in Equity, 169, 170; French vs. The Loyal Co. , 5 Leigh 627; Lodge vs. Simonton , 2 Penn. Rep., 439; Bell vs. Tw...

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