Ainsfield v. More

• Decision Date: 23 September 1890
• Parties: JOHN AINSFIELD ET AL., APPELLEES, v. ANDREW B. MORE, APPELLANT
• Court: Nebraska Supreme Court

46 N.W. 828

30 Neb. 385

JOHN AINSFIELD ET AL., APPELLEES, v. ANDREW B. MORE, APPELLANT

Supreme Court of Nebraska

September 23, 1890

APPEAL from the district court for Douglas county. Heard below before GROFF, J.

AFFIRMED.

Gregory Day & Day, and George S. Smith, for appellant, cited McClelland v. Sanford, 26 Wis. 595; Miner v Hess, 47 Ill. 170; Harter v. Christoph, 32 Wis. 247; McTucker v. Taggart, 29 Iowa 479; Strayer v. Stone, 47 Id., 336; Ivinson v. Hutton, 8 Ott. [U. S.], 79; Story, Eq. Juris., sec. 164; McGoren v. Avery, 37 Mich. 120; Else v. Kennedy, 67 Iowa 376; Welton v. Merrick Co., 16 Neb. 83; Hill, Trusts, 265*; Burke v. Smith, 16 Wallace [U. S.], 390; Godden v. Kimmell, 99 U.S. 201; Ware v. Galveston, 111 Id., 170; Bank U. S. v. Daniel, 12 Peters [U. S.], 52*; Lewis v. Marshall, 5 Peters [U. S.], 470*.

W. J. Connell, for appellee Ainsfield.

E. W. Simeral, for appellees Rosewater et al.

OPINION

COBB, CH. 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 southwest corner of the southeast quarter of the southwest quarter of section 26, township 15 north, of range 13 east, of 6th P. M., thence north 6 chains, thence east 8 91 chains, thence south 10 1/2 degrees 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. Goodwill, 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 Goodwill, and which includes the real estate now owned by plaintiffs, is as follows: Beginning at a point 2.72 chains north 71 degrees west from the quarter section corner between sections 26 and 35 (magnetic variation 11 1/4 degrees east), thence south 17 degrees east 10.15 chains to a black oak, thence north 60 degrees west 1.33 chains, thence north 72 1/2 degrees west 1.83 chains, thence north 57 degrees west 6.20 chains, thence north 75 degrees west 5.65 chains, thence north 82 degrees west 6.64 chains, thence north 21.22 chains, thence east 7.80 chains, thence south 10 degrees west 4 20 chains, thence south 10 1/2 degrees east 14.70 chains, thence south 86 1/2 degrees east 7.90 chains to the place of beginning, containing 23.65 acres, in sections 26 and 35, in township 15 north, of range 13 east. That the plaintiffs and their grantees have been in the actual, continuous, notorious, and adverse possession of said land for more than fifteen years 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 Goodwill, 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 fifteen 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 five 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 southeast quarter of the southwest quarter of section 26 and in the northern portion of the northeast quarter of the northwest quarter of section 35, all in township 15 north, of range 13 east, of 6th 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. Goodwill, without claim or color of title, but to the injury and wrong of defendant, made a pretended conveyance of the same to George G. Earle.

"7. On March 22, 1878, George G. 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 interests, 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 of 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. Goodwill 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 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 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 north, range 13 east, of 6th P. M., in said county. That on said day he conveyed the same to Lucy A. Goodwill, 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, Goodwill conveyed by warranty deed to George G. 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 southeast corner of southwest of southwest section 26, thence north 19.50 chains to northeast corner of said southwest of southwest 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 northwest corner of southeast southwest section 26, township 15, range 13, thence south 14 chains, thence east 4.18 chains, thence north 14 chains, thence west 4.18 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 Goodwill may be reformed and corrected,...