Dart v. Barbour

• Decision Date: 18 June 1875
• Citation: 32 Mich. 267
• Court: Michigan Supreme Court
• Parties: Servetus Dart v. James T. Barbour and another

32 Mich. 267

Servetus Dart v. James T. Barbour and another

Supreme Court of Michigan

June 18, 1875

Heard June 9, 1875

Appeal in Chancery from Oakland Circuit.

Decree affirmed, with costs.

A. C Baldwin, for complainant.

M. S Brewer and M. E. Crofoot, for defendants.

OPINION

Graves, Ch. J.:

In 1866 one John P. Foster owned lot one, as numbered on the plat of the eastern addition of the city of Pontiac.

The lot was triangular in shape, fronting on Saginaw street on the west, and running back to the Clinton river, and extending from the intersection of the street and river to another lot on the south, and being one hundred and sixteen feet in width on such south line.

At this time a cheap frame building was standing on the south part, and the defendants were occupying as Foster's tenants.

Foster was willing to sell the entire lot for one thousand two hundred dollars, and convey it in two parcels, and the complainant and one Bowlby purchased it in that way, each taking a deed for a distinct part. They agreed verbally between themselves that complainant should take the south part including the old building, and Bowlby the north part, and that the line dividing their parcels should run from the center of the front on Saginaw street, parallel with the south line of the lot, to the center of Clinton river, and that the deeds to be made by Foster should be framed accordingly. This plan, besides giving to complainant the old building, gave him a much larger quantity of land than to Bowlby, and was supposed to give him an interest of twice the value, because it was part of the understanding that complainant should pay Foster eight hundred dollars, and Bowlby should pay four hundred dollars. It would seem that Foster left the preparation of the conveyances to complainant and Bowlby. They accordingly employed one Bowman, a local conveyancer, to draw the deeds, and gave him their instructions. But this gentleman, either through a mistake in the instructions given him, or a misapprehension as to the nature of the instructions, or for some other reason, in wording each deed described the land granted as "half" of the lot, that is to say, the land in the deed to complainant was described as the "south half" of lot one, and the land in the deed to Bowlby was described as the "north half" of lot one. These deeds thus drawn, were inspected by the grantees, executed by the grantor, and regularly delivered and accepted. Both complainant and Bowlby appear to have been satisfied with the terms used by the conveyancer they had employed. After their purchase they made no attempt to fix any dividing line upon the ground, and performed no act tending to give any special practical construction to the terms of conveyance. At length Bowlby sold and conveyed to defendants, and the description in his deed to them was copied from that in the deed he received from Foster.

After this conveyance the defendants made claim to the north half of the superficial area of the lot, and the complainant resisted the claim and insisted that he was entitled to all south of a line starting at the center of the front of the lot on Saginaw street and extending on a line parallel with the south line of the lot, back to the center of the river. The parties were therefore in dispute about the strip which has been indicated across the center of the lot, and the defendants began an ejectment to recover it.

The complainant thereupon filed this bill, and alleged that in preparing the deed he received there was a serious mistake to his great injury and loss, in the omission of words fixing and defining the portion of the lot he...