Bennett v. Hickey

• Decision Date: 27 April 1897
• Citation: 70 N.W. 900,112 Mich. 379
• Court: Michigan Supreme Court
• Parties: BENNETT v. HICKEY ET AL. HICKEY ET AL. v. BENNETT.

70 N.W. 900

112 Mich. 379

BENNETT v. HICKEY ET AL.

HICKEY ET AL. v. BENNETT.

Supreme Court of Michigan

April 27, 1897

Cross appeal from circuit court, Wayne county, in chancery; William L. Carpenter, Judge.

Bill by William C. Bennett against Edward J. Hickey and others, some of whom answered by a cross bill. From a decree in favor of defendants, both sides appeal. Modified.

Fraser & Gates, for complainant.

Keena &amp Lightner, for defendants.

MOORE J.

The bill in this case was filed March 18, 1895, to obtain an accounting of the moneys paid by complainant to defendants Hickey, Tannahill, Caswell, and Kern under a land contract between them dated March 1, 1893, and to foreclose his vendee's lien upon the premises in question. These defendants filed an answer in the nature of a cross bill to foreclose the contract. A decree was made in favor of the defendants for the greater part of what they claimed. Both sides appealed.

March 1, 1893, complainant entered into a contract in writing with defendants Hickey, Tannahill, Caswell, and Kern, whereby they agreed to sell and convey to him land in the township of Greenfield, described as follows: "Bounded on the west by the westerly line of the southeast quarter of section 10; on the south by the center line of the six-mile road; on the east by a line parallel with the boundary of said property and being the dividing line of the properties formerly known as the J. Stebbins and the H. Valentine farms, said eastern boundary line running northerly from the said six-mile road to the southern boundary line of the northeast quarter of said section 10; on the north by the southerly boundary line of the northeast quarter of said section 10,-containing twenty three and 3-100ths (23.03) acres, more or less." It was agreed that the exact dimensions and extent of said land should be ascertained by a survey to be made at the expense of defendants. Complainant agreed to purchase and pay for the land at $750 per acre; $6,037.75 on the execution of the contract, and the balance April 8, 1895 with interest at 6 per cent. per annum, payable semiannually. The complainant was not to assign the contract without the consent of the defendants. They were to consent to the assignment of the contract if the assignees were of equal financial responsibility with complainant. Mrs. Yemans was the owner of the 26 acres next east of the land described in the contract. Between the two pieces of land was a ditch. On the west bank of the ditch was a fence, leaving a small strip of land between the fence and the center of the ditch, that was occupied by Mrs. Yemans, but which the defendants claim they owned, when the contract was made, and which they insist was included in the contract. The defendants caused the land to be surveyed by Mason L. Brown. He surveyed only that part west of the fence. According to his survey, there was 23.438 acres of land. Later he made a survey which embraced all the land west of the center of the ditch. This survey showed 23.755 acres. The complainant was not satisfied with this survey, and agreed that, if the county surveyor was employed and his survey showed there was as much land as was shown by the last survey made by Mr. Brown, he would abide by Mr Brown's survey. The county surveyor was employed, and his survey showed there was 23.98 acres of land. The parties, however, failed to arrive at a settlement. There was a controversy as to the ownership of the strip of land between the fence and the ditch. The defendants held their title through a contract running to them from John B. Moloney. On May 10, 1894, a written agreement was made between Mr. Moloney and Mrs. Yemans, in which the descriptions of land claimed by the respective parties were set out, and an agreement was made that until the line of said ditch changes from the first direction to a more easterly or northeasterly course, the center of the ditch should be recognized "to be the line and actual line of division between the respective properties." It was further provided that Mrs. Yemans, "her heirs, assigns, or administrators, have no...