Carey v. Clark
| Decision Date | 15 December 1916 |
| Docket Number | 2239. |
| Citation | 161 P. 713,40 Nev. 151 |
| Parties | CAREY v. CLARK. |
| Court | Nevada Supreme Court |
Appeal from District Court, Humboldt County; Edward A. Ducker Judge.
Suit by Charles Carey against George H. Clark. From a judgment for plaintiff, and an order denying his motion for new trial defendant appeals. Judgment and order affirmed.
R Gilray, of Winnemucca, for appellant.
Salter & Robins, of Winnemucca, for respondent.
Respondent brought suit against appellant in the court below to quiet title to a certain parcel of land in the town of Winnemucca. Appellant, in his answer, denied certain of the material allegations in the complaint and, for a further defense and by way of cross-complaint, alleged mutual mistake in the description contained in a certain deed made by the respondent as grantor to the appellant as grantee, which alleged mistaken description was relied upon by respondent in support of his alleged cause of action. Appellant prayed for reformation of the said deed to comply with the agreement alleged in the answer. Judgment was for the plaintiff. From the judgment and from an order denying a motion for a new trial, defendant has appealed.
From the evidence it appears that on the 12th day of December 1911, an agreement in writing was entered into between the plaintiff and defendant, whereby the plaintiff agreed to convey to defendant by good and sufficient deed the following described premises:
"Fronting sixty-four feet on the extension of Bridge street to the Humboldt river on the northeasterly side of said extension, extending back from said extension of Bridge street, between parallel lines one hundred and twenty-five feet, the four corners of said piece of ground to be designated and marked by permanent posts by the parties hereto."
Shortly after the making of the said agreement of December 12, 1911, the parties marked the boundaries of the land intended to be conveyed pursuant to said agreement. It appears that the corners were designated by small stakes rather than by "permanent posts." Several months later, on the 27th day of March, 1912, plaintiff made and executed a deed in pursuance of said prior agreement and delivered the same to the defendant, and it is this deed which defendant alleges, by reason of mutual mistake, does not comply with the terms of the agreement. The following diagram shows the premises which the plaintiff contended was conveyed by the deed of March 27, 1912, and the premises which the defendant contends should have been conveyed by said deed and which he asks that the deed be reformed to convey. The land which the plaintiff contends was conveyed by the said deed is marked on the diagram by the lines 1, 2, 3, 4. The land which the defendant contends should have been conveyed is marked by the lines a, b, c, d.
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By the description contained in the deed in question, the center of the center pier of a concrete bridge spanning the Humboldt river was used as a starting point for determining the corners of the land which the deed purports to convey. It is clear that there is an error in the description of the starting point which should have been the northerly end of the pier. As it is a fundamental rule in construing conveyances that courses and distances give way to permanent monuments, and as the northerly side line of Bridge street extended is, in effect, a permanent monument, the misdescription in the deed, to this extent, is immaterial.
The burden of proof was on the defendant to...
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