Brooks v. Hamilton

• Decision Date: 01 January 1870
• Citation: 15 Minn. 10
• Parties: ALICE BROOKS v. ELIZABETH HAMILTON.
• Court: Minnesota Supreme Court

Page 10

15 Minn. 10

ALICE BROOKS

v. ELIZABETH HAMILTON.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Hennepin county, overruling a demurrer to the complaint.

Atwater & Flandrau, for appellant.

COPYRIGHT MATERIAL OMITTED

Cornell & Bradley, for respondent.

McMILLAN, J.

This action is brought to cancel and set aside a deed of conveyance for certain real estate, duly executed by the defendant to the plaintiff, and to compel the defendant to receive a reconveyance of the premises, and to repay the plaintiff the purchase money, with interest.

The complaint alleges that in September, 1855, the plaintiff was living and residing upon a certain tract of land situate on the shore of Lake Calhoun, in the county of Hennepin, a good part of which was inclosed by a fence, and whereon was a good and valuable dwelling-house and other improvements; that said dwelling-house was located upon a pleasant bluff, or swell of ground, a short distance back from said lake, overlooking said lake, and commanding a fine and agreeable prospect, and in an inclosed field, save on the side next to the lake; that the line of said inclosed field, westerly from said dwelling-house, was indicated by a fence, commencing at or near the shore of said lake, and extending back therefrom to the back end of said tract, and at a distance from said house of near 14 rods; that the whole of such land between said house and said fence was in cultivation and actually occupied by plaintiff; that at the said starting point by said fence, on the shore of said lake, was a stake resembling a monument stake; that said defendant represented to said plaintiff, and to one Emma R. Still, her, plaintiff's, duly-authorized agent in that behalf, that said tract of land whereon she was then so residing, contained about 11 acres, and that she was the lawful owner thereof; that said tract embraced and included the whole of the inclosed bluff whereon said house was built; that said tract had been theretofore surveyed out, and that said stake hereinbefore mentioned as resembling a monument stake was, in fact, the corner stake of her said tract, and that the said fence running thence back from the lake was the line fence, and indicated the true boundary on that side of said tract; that said defendant also pointed out to said plaintiff and her said agent a stake on the shore of said lake, which she represented as the northeast corner of said tract; that the plaintiff being desirous of purchasing a pleasant summer residence on the border of said lake, and being pleased with the location of said tract as pointed out and represented by defendant, was thereby induced to purchase the same of the defendant at the price of $3,000, and did by her said agent so purchase the same at said price, in the full belief that said representations so as aforesaid made by said defendant to her and her said agent in regard to the location of said premises and said line fence and said corner stakes, were true, and did then and there pay defendant the said sum of $3,000, and took from her a warranty deed, by her duly executed and acknowledged, of what the plaintiff supposed to be the same tract which defendant had represented to her and her agent that she owned.

The complaint also sets out the description of the premises as contained in the deed, and avers that the defendant represented, and the plaintiff fully believed, that such description fully corresponded with the boundaries of said tract as represented and pointed out by defendant as aforesaid to her; that in fact the tract conveyed does not so correspond; that neither the corners of said tract on the lake correspond with the corners as pointed out by the defendant; that the fence represented as a line fence, and indicating the true boundary of said tract on the westerly side of said house does not correspond with such line or true boundary, but the corners are, in fact, 14 rods further east on the lake shore than represented, and the real line constituting the western boundary of said tract is also 14 rods further east than the said fence, and actually runs through said dwelling-house; that the tract conveyed does not embrace the pleasant bluff or elevated piece of ground plaintiff supposed and believed she was purchasing, but only a small portion of it, and is principally low ground, and much less desirable and valuable as a place of residence, or otherwise, than the tract defendant represented s...