Bush v. Merriman

• Decision Date: 28 July 1891
• Citation: 87 Mich. 260,49 N.W. 567
• Court: Michigan Supreme Court
• Parties: BUSH v. MERRIMAN et al.

49 N.W. 567

87 Mich. 260

BUSH v. MERRIMAN et al.

Supreme Court of Michigan

July 28, 1891

Appeal from circuit court, Kent county, in chancery; WILLIAM E GROVE, Judge.

Bill in chancery by Susan A. Bush against David P. Merriman and another to reform a deed and enjoin collection of a judgment. Decree for defendants, and complainant appeals. Reversed.

John M. Mathewson, for appellant.

Myron H. Walker, for appellees.

CHAMPLIN, C.J.

The bill of complaint is filed in this case to reform a certain deed of real estate described as "the entire of lot two block two, Snell's addition to the vlilage of Lowell, as of record," so that the same shall read, "all of village lot number two of block two, according to Caroline Snell's recorded addition to the village of Lowell excepting that portion heretofore sold by the first party hereto unto one Ann Loughlin by deed bearing date the tenth day of August, 1877;" and also to restrain the defendants from prosecuting a suit, or any suit, against the complainant for breach of covenant of warranty of seisin on account of that portion of lot two conveyed to Ann Loughlin prior to the deed from said Susan A. Bush to them.

The bill of complaint sets up that prior to the 10th day of August, 1877, she was the owner of lot 2, block 2, above mentioned, and had sold a portion thereof, and conveyed the same to one Ann Loughlin; that on the 20th day of February 1888, she sold said lot 2, block 2, except the portion previously sold to Ann Loughlin, to the defendant David P. Merriman; that previous to her sale to him he was shown that portion of the lot which had not been previously conveyed, and that the premises were surrounded by a fence, and that he was informed where the lines of the real estate were which was intended to be sold to him; that the other portion of lot 2 had previously been sold to Ann Loughlin, and that the price agreed upon for that portion of which the title remained in the complainant was $300; that after agreeing upon the price Merriman and complainant met at the office of Sylvester P. Hicks in the village of Lowell, for the purpose of consummating such bargain, and making a deed of that portion of said lot 2 that complainant then owned, and that she had bargained to sell, and to make delivery of the deed of the same; that Hicks had prepared a deed before complainant went there, joining the complainant and her husband as grantors, and he commenced to read the deed which he had drawn; when he came to that portion, the complainant objected to her husband being named as one of the grantors, as he did not own any interest in the land, whereupon Hicks drafted a new deed, and by the request of Merriman the deed was made jointly to David P. Merriman and Emily M. Merriman as grantees; that after the deed had been drafted it was read to the complainant in the presence of David P. Merriman, whereupon the complainant then and there objected to executing such deed on account of the description of the property, to-wit, "the entire of lot two, block two, Snell's addition to the village of Lowell, as of record;" that she then stated to said Hicks and David P. Merriman that she did not own all of said lot 2; that she had not bargained all of it; that she had previously sold a portion of said lot to Ann Loughlin, and that Merriman understood it. Mr. Hicks then stated that the abstract did not show she had sold any of it; that complainant then informed them that the abstract was wrong; that she had sold a portion to Ann Loughlin, and she had bargained to Merriman what was left; whereupon Mr. Hicks, in the presence of said Merriman, stated that it would make no difference, as both parties understood the matter fully; that the Merrimans could only hold what was left; that with that understanding only that the Merrimans could only hold her responsible for such part of lot 2 as she then owned, she consented to and did sign and deliver to said David P. Merriman a warranty deed, a copy of which was appended to the bill, and which the defendants afterwards, on the 23d day of February, 1888, caused to be recorded in the office of the register of deeds of Kent county, in Liber 185 of Deeds, at page 20. She further alleges in her bill that, shortly after the delivery of the deed, the defendants took actual possession of the premises, and have ever since been in possession thereof, and occupied the same as a home, and prior to the execution and delivery of the deed the actual location and extent of the premises intended to be conveyed were ascertained by view and inspection thereof, and were understood correctly and alike by the parties to said deed to be all of lot 2 of block 2 in the village of Lowell, Kent county, state of Michigan, according to Caroline Snell's addition to said village, except that portion of said lot 2 that had been deeded to Ann Loughlin, and which portion was then fenced in as aforesaid with her other land, and was then, and is now, and has ever since been, in her possession. She then charges that by mistake of said parties the description in said deed is so drawn that it includes not only the premises intended to be conveyed to the defendants by the complainant, but also the piece of land sold and conveyed to Ann Loughlin as aforesaid; that the defendants well knew that complainant only intended to convey that part of lot 2 which she then owned, and not that part inclosed by Ann Loughlin's fence; and she believed that said description acually written in said deed only conveyed the entire of what she then owned of said land, and no more. She further charges that soon after the execution of the deed the defendants moved into the house on the lot, commenced keeping house, and soon after that obtained a surveyor, and claimed to have established the boundary lines of said lot 2, and then for the first time they set up and claimed to own the whole of said lot 2, and they commenced to tear down the line fence between the land conveyed to Ann Loughlin and the land sold to defendants; whereupon Ann Loughlin forbade them from tearing down the fence, and showed them her deed, which deed had then been on record as aforesaid six years or thereabouts; whereupon the defendants then set up for the first time to the complainant the claim that she had sold and deeded to them the whole of lot 2; that up to this time the complainant supposed and believed the description to be correct, and a true description of the premises owned by her, and intended to be conveyed by her to said defendants. She further charges that the claim set up on the part of the defendants after having obtained possession of the premises is untrue, wicked, and fraudulent, by means whereof they are trying...