Ainsfield v. More

Decision Date23 September 1890
PartiesAINSFIELD ET AL. v. MORE ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. The pleadings and evidence examined, and held to sustain the judgment.

2. In a suit where the relief demanded consists in the correction of a mistake in the drafting or recording of a deed conveying lands 30 years before the commencement of such suit, and the correcting of the mistake involves no change of actual possession, or disturbance of investments made by the party against whom the correction is sought, and leaves the enjoyment of the property to go on in harmony with the prior acts of the parties in interest, the statutes of limitation being pleaded, held, that the statute began to run upon the discovery of the mistake, or of such fact or facts as would put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. Ormsby v. Longworth, 11 Ohio St. 653.

Appeal from district court, Douglas county; GROFF, Judge.Gregory, Day & Day and Geo. S. Smith, for appellants.

Mr. More and W J. Connell, for appellees.

COBB, C. J.

John Ainsfield, Marcus Rosenwaser, and Andrew Rosewater exhibited their petition in the district court of said county, alleging that they and their grantees are in the actual possession of the following described real estate in said county, to-wit: Beginning at the S. W. corner of the S. E. 1/4 of the S. W. 1/4 of section 26, township 15 N., of range 13 E. of sixth P. M.; thence north 6 chains; thence east 8.91 chains; thence south, 10 1/2° east, 4.39 chains; thence south 1.44 chains to the south line of section 26; thence west 9.33 chains to the place of beginning,--containing 5 1/2 acres, more or less. The plaintiffs allege that Andrew B. More, defendant, claims an interest and estate in said premises adverse to them. That on December 24, 1857, he for a valuable consideration, by deed in due form, conveyed said real estate, with other land, to Lucy A. Goodwell, under whom plaintiffs derive title, but that by mistake in recording said deed, or in writing the description of the land intended to be conveyed, the word “east,” after the words “thence north 72 1/2 degrees,” was inserted in place of the word “west,” by reason of which the defendant is wrongfully and unlawfully claiming title to said land, to the injury and prejudice of plaintiffs. That the correct description of the land intended to be conveyed by defendant to Goodwell, and which includes the real estate now owned by plaintiffs, is as follows: Beginning at a point 2.72 chains north, 71° west, from the quarter-section corner between sections 26 and 35, (magnetic variation 11 1/4° east;) thence south, 17°>>>> east, 10.15 chains to a black oak; thence north, 60° west, 1.33 chains; thence north, 72 1/2° west, 1.83 chains; thence north, 57 degrees west, 6.20 chains; thence north, 75° west, 5.65 chains; thence north, 82° west, 6.64 chains; thence north 21.22 chains; thence east 7.80 chains; thence south, 10° west, 4.20 chains; thence south, 10 1/2° east, 14.70 chains; thence south, 86 1/2° east, 7.90 chains to the place of beginning,--containing 23.65 acres in sections 26 and 35, in township 15 N., of range 13 E. That the plaintiffs and their grantees have been in the actual, continuous, notorious, and adverse possession of said land for more than 15 year last past, paying all taxes levied or assessed against it, and claiming to be the owners thereof. Plaintiffs pray to be declared to be the owners in fee-simple of said land; that their title thereto may be quieted; and that the deed of defendant to Goodwell, and the record thereof, be corrected and reformed by inserting the word “west” in place of said word “east;” and that said defendant be forever enjoined from interfering with the possession of said land, or making claim of title thereto, and be forever barred of all right, title, interest, or claim in said land, and be required to pay the costs of this action; and for further relief. On motion to the court, and for cause shown, the defendant was allowed to file a cross-bill herein, and make C. E. Hawver, Harriet L. Hawver, and Frank J. Kasper additional parties defendant to this action as follows: That he admits that he is the owner of the lands mentioned, and has asserted ownership thereof; but expressly denies each and every other allegation in the petition contained, and expressly denies that any mistake was at any time made, either in writing or recording of the deed referred to, or that the plaintiffs, their grantees or grantors, have been in actual, notorious, and adverse possession of said lands, or any part thereof, for the 15 years last past; and further denies that plaintiffs have had or been in possession in any manner whatever, except by willful and wrongful entry thereon, within the past 5 years from this date, and not prior thereto. (5) The defendant further alleges that he was, and is, and during all the time mentioned has been, the absolute owner of land lying and situate upon the west side of the S. E. 1/4 of the S. W. 1/4 of section 26, and in the northern portion of the N. E. 1/4 of the N. W. 1/4 of section 35, all in township 15 N., of range 13 E. of sixth P. M., as covered by the claim under the pretended mistake in deed, holding the same by good, perfect, and indefeasible title from the United States. (6) On August 24, 1874, Lucy A. Goodwell, without claim or color of title, but to the injury and wrong of defendant, made a pretended conveyance of the same to George E. Earle. (7) On March 22, 1878, George E. Earle and wife made a pretended conveyance of the same to C. E. Hawver. (8) On October 14, 1885, C. E. Hawver and wife made a pretended conveyance to Frank J. Kasper and Andrew Rosewater of the special portion set up and claimed by plaintiffs; and on June 15, 1886, Hawver and wife made another pretended conveyance to plaintiffs. (9) Defendant alleges that each and all of said pretended conveyances were made without color of ownership in said pretended grantors. That defendant at no time parted with his title or interest, either equitable or legal, in said lands. (10) That said pretended conveyances create a cloud upon plaintiffs' title and estate therein. That they be held for naught, and the parties be forever barred from setting up any claim of title thereto, and the defendant have complete relief, etc.

On the 29th June, 1887, Frank J. Kasper was allowed to answer instanter, and Frank Shoull was made defendant, and answered, denying that said More is the owner of the property, denying that the conveyance by Lucy A. Good well to George G. Earle was made without claim or color of title, and denying that the other conveyances, referred to in the cross-petition, were without claim or color of title; but alleging that on December 24, 1857, said More was the owner of the following land: Beginning at a point 2.72 chains north, 71° west, from the quarter-section corner between sections 26 and 35, (magnetic variations 11 1/4 east;) thence south, 17° east, 10.15 chains to a black oak; thence north 60° west, 1.33 chains; thence north, 72 1/2° west, 1.83 chains; thence north, 57° west, 6.20 chains; thence north, 75° west, 5.65 chains; thence north, 82°>>>> west, 6.64 chains; thence north 21.22 chains; thence east 7.80 chains; thence south, 10° west, 4.20 chains; thence south, 10 1/2°>>>> east, 14.70 chains; thence south, 86 1/2° east, 7.90 chains to the beginning,--containing 23.65 acres in sections 26 and 35, township 15 N., range 13 E. of sixth P. M., in said county. That on said day he conveyed the same to Lucy A. Goodwell, but, either in the deed itself or the record of it, there was a mistake in the description of the land in the words, “thence north, 72 1/2° west, 1.83 chains.” The word “east” was inserted instead of “west,” as the direction of variation, the description reading: “Thence north, 72 1/2° east, 1.83 chains.” Defendant alleges that it was the intention of the grantor to convey the said land described, and that the insertion of the word “east” in place of “west” in the third course of description was a clerical error and mistake in drawing the deed. That on August 24, 1874, Goodwell conveyed, by warranty deed, to George E. Earle, the following: Beginning at a point 2.72 chains north, 71° west, from quarter-section corner between sections 26 and 35; thence south, 17° east, 40 chains; thence west 17.55 chains to a point 50 links north of S. E. corner of S. W. 1/4 of S. W. 1/4, section 26; thence north 19.50 chains to N. E. corner of said S. W. 1/4 of S. W. 1/4, section 26; thence east 7.80 chains; thence south, 10° west, 4.20 chains; thence south, 10 1/2° east, 14.77 chains; thence south, 86 1/2° east, 7.70 chains to the point of beginning. That on March 22, 1878, said Earle conveyed, by warranty deed, said last-described tract to Carrie E. Hawver. That in the year 1878 she died, having devised to her husband, Samuel Hawver, said property. That on October 14, 1885, Samuel Hawver and his then living wife, (he having remarried,) conveyed, by warranty deed, to Andrew Rosewater, plaintiff, and to this defendant the following: Beginning at N. W. corner of S. E. 1/4 of S. W. 1/4, section 26, township 15, range 13; thence south 14 chains; thence east 4.18 chains; thence north 14 chains; thence west 4.18 chains to the beginning,--being 5.85 acres. That afterwards Rosewater conveyed his interest in said land to Frank Shoull, who, being a party defendant, makes this his answer to the cross-petition, as well as the answer of Kasper. They allege that they are the owners in fee-simple of said last-described land, and, with their grantors, have been in actual possession for ______ years last past, and are now in peaceable possession, having large improvements thereon. The defendants pray that the description in the deed from More and wife to Goodwell may be reformed and corrected according to the facts, to express the...

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2 cases
  • Pinkham v. Pinkham
    • United States
    • Nebraska Supreme Court
    • October 3, 1900
    ... ... propositions advanced with respect to the law of the case, ... and res adjudicata, as being subordinate to, and ... hinging upon the more important one of whether the appellee ... may properly amend his answer in the manner sought, and at ... the time the amendment was made. If, under ... meaning of the statute. This question was thoroughly ... considered in the case of Ainsfield v. More, 30 Neb ... 385, 46 N.W. 828, and, as it appears to us, that opinion must ... be considered as decisive of the question under ... ...
  • Ainsfield v. More
    • United States
    • Nebraska Supreme Court
    • September 23, 1890

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