Banks v. Allen

• Decision Date: 04 June 1901
• Citation: 127 Mich. 80,86 N.W. 383
• Court: Michigan Supreme Court
• Parties: BANKS v. ALLEN et al.

86 N.W. 383

127 Mich. 80

BANKS v. ALLEN et al.

Supreme Court of Michigan

June 4, 1901

Appeal from circuit court, Oceana county, in chancery; Fred J Russell, Judge.

Suit by Henry Clay Banks against Dan Allen and others to reform a deed and quiet title to certain lands. From a decree in favor of defendants, the plaintiff appeals. Reversed.

George S. Lovelace (N. J. Brown, of counsel), for appellant.

Hartwick & Foote (C. W. Sessions, of counsel), for appellees.

LONG J.

Bill to reform a deed and quiet title to certain lands in Oceana county. The complainant resides at Elgin, Ill., and claims to own the lands in controversy here in fee. The bill sets out that he is the owner of the N.E. 1/4 of the S.W. 1/4, and the S. 1/2 of the S.E. 1/4 of the N.W. 1/4, of section 35, town 13 N., range 18 W., and other lands, in Oceana county, this state; that the N, 1/2 of the S.E. 1/4 of the N.W. 1/4 of said section became the property of one Christopher Rager in 1873, and has since been owned and occupied by him and his heirs; that in 1875 the S. 1/2 of the S.E. 1/4 of the N.W 1/4 became the property of one Amos H. Armitage and others and prior to the year 1884 became the sole property of said Armitage and his wife; that, in the year 1884, Armitage and wife conveyed all the property above described to one Hachnel, but in said deed of conveyance the word 'south' was omitted, so the description read, 'half of the southeast quarter of said northwest quarter'; that Hachnel was put into possession of the S. 1/2 of S.E. 1/4 of the N.W. 1/4 under said deed, and so remained in possession until the 10th day of November, 1895; that on the 18th day of March, 1884, Hachnel and wife executed a mortgage to Armitage and wife, covering the lands, but in the mortgage the word 'south' was again omitted from the description; that in December, 1884, the mortgage was assigned by Armitage and wife to William Banks, and by him assigned to Henry Clay Banks, the complainant here; that this mortgage was afterwards foreclosed by advertisement, and in the description the word 'south' was again omitted; that on the 14th day of October, 1895, the complainant obtained judgment against Hachnel and wife in the circuit court for restitution of the premises, including the S. 1/2 of the S.E. 1/4 of the N.W. 1/4 of said section 35; that on said trial Hanson & Hanson and Brown & Lovelace were his attorneys, acting for and in his behalf, but that Brown & Lovelace had the control of his case, and that Hartwick & Foote acted as attorneys for the defendants Hachnel; that, upon the trial of said cause, he (as plaintiff) introduced testimony identifying the lands owned by Hachnel, and occupied by him, and intended to be covered by said mortgage, among which was the S. 1/2 of the S.E. 1/4 of the N.W. 1/4 of section 35, together with other lands; that after the rendition of the judgment he paid his said attorneys in full for all services, and discharged them from any further participation in said cause, and that they thereafter had no authority to act further therein, but that on March 5, 1898, said Hanson & Hanson, by John D. S. Hanson, a member of said firm, pretending to act as his attorneys, entered into a stipulation with the attorneys of Hachnel to change the record of said judgment, by which there was excepted from said judgment, by an interlineation therein, the S. 1/2 of the S.E. 1/4 of N.W. 1/4 of said section 35; that this was done without the knowledge, consent, or authority of complainant; that on October 22, 1895, Hartwick, the attorney as aforesaid of said Hachnel, obtained from Armitage and wife, and also from Hachnel and wife, quitclaim deeds of the S. 1/2 of S.E. 1/4 of N.W. 1/4 of said section 35, with full knowledge of the rights of complainant in said premises; that thereafter said Hartwick conveyed said premises so deeded to him by Armitage and wife and Hachnel and wife to the said defendant Mary E. Osmun, who conveyed the same to defendant Herman Boyd; that these defendants now claim to own or to have some interest in said premises; that on April 27, 1898, the defendant Dan Allen, acting under some supposed authority or claim by reason of the change in said judgment entry, or by some paper lease from Herman Boyd, now threatens to enter upon said lands, and forcibly deprive the complainant of his possession. The prayer of the bill is that the description in the deed from Armitage and wife to Hachnel and wife may be reformed and corrected, together with the description in the mortgage, and that the several conveyances obtained by Hartwick from Armitage and Hachnel may be decreed to have inured to the benefit of complainant. The record contains an affidavit made by John D. S. Hanson, which is made a part of the bill, in wich he says that he signed the stipulation, above referred to, to correct the judgment, under a misapprehension of the facts.

The defendants Allen and Boyd answered the bill. In their answer they allege that the judgment of restitution referred to stands as the judgment of the court; that, at the time the stipulation was signed by Hanson, Hartwick had not received his pay from complainant; that Mary E. Osmun conveyed the premises by warranty deed to defendant Boyd in 1898, and that deed was duly recorded prior to the date of the filing of complainant's bill; and the defendants claim the same benefit and advantage by their answer as if they had pleaded or demurred to the bill. It is not alleged in the answer that they paid anything for the lands; and they do not deny in the answer that Hartwick knew of the claim of complainant at the time he took his deeds from Armitage and Hachnel. Defendant Osmun filed a disclaimer.

The complainant introduced testimony showing that the original order of the court was that complainant here was entitled to the restitution of the premises in controversy, but that, by reason of the stipulation, the entry was made excepting the land in controversy. A copy of the journal entry, as corrected under the stipulation, appears in the record. The last journal entry reads: 'In the above-entitled cause it is hereby stipulated by and between the parties that the journal entry of the findings of the court in the above cause does not correctly record the finding of the court as made by the court, and, for the purpose of correcting said journal entry, it is stipulated and agreed between the parties that...