Hollenbeck v. Prior

• Decision Date: 01 October 1888
• Citation: 40 N.W. 347,5 Dakota 298
• Parties: Hollenbeck v. Prior et al.
• Court: North Dakota Supreme Court

40 N.W. 347

5 Dakota 298

Hollenbeck v. Prior et al.

Supreme Court of Territory of Dakota

October 1, 1888

Appeal from district court, Sanborn county.

Action by George Hollenbeck against Charles H. Prior, John Paul, and the Chicago, Milwaukee & St. Paul Railway Company, to enforce specific performance of a contract to reconvey land. Demurrer to complaint sustained, and plaintiff appeals.

N. B Reed, for appellant. W. H. Norris and Dillon & Preston, for respondents.

CARLAND J.

This is an appeal from a judgment of the district court for Sanborn county, sustaining a demurrer to the complaint of the plaintiff. Two demurrers were interposed; one by the defendant the Chicago, Milwaukee & St. Paul Railway Company and one by defendant Charles H. Prior. The ground of demurrer, as specified by said defendants, was that the complaint did not state sufficient facts to constitute a cause of action. The defendant John Paul filed a disclaimer. On the hearing of the demurrers the same were sustained, and the plaintiff electing to stand on his complaint, judgment was entered in favor of defendants, from which judgment plaintiff appealed.

The plaintiff, in his complaint, alleges, in substance, that on September, 18, 1883, plaintiff was the owner of the N. E. 1/4 of section 28, township 107 N., of range 62, upon which he then and ever since has resided. That by warranty deed dated September 18, 1883, he conveyed a portion of said land to the defendant Charles H. Prior. That by a memorandum in writing it was mutually agreed between said plaintiff and said Charles H. Prior that, in consideration of the conveyance of said land to said Prior for the sum of $2,500, said Prior would lay out a town, and plat said land into lots and blocks, streets and alleys; and that plaintiff might reserve to himself one block of land of the average-sized blocks of said town, not to exceed 300 feet square; and that the block that should be reserved should be the one on which the plaintiff's dwelling-house then stood. That the deed of conveyance from plaintiff to said Prior contained this reservation: "Reserving to himself his dwelling-house and one block of land where the same is situated, to be reconveyed to said Hollenbeck by said Prior, as per memorandum this day made." That after the making of said deed, and prior to October 13, 1883, said Prior duly platted said land into blocks of the average size of 300 feet square, which plat was duly recorded October 17, 1883, in the office of the register of deeds of Sanborn county. That, when said plat was completed, the portion of land on which plaintiff's dwelling-house stood was shown as a fractional block, and numbered block 29. That said block was not 300 feet square. That said fractional block measured 262.7 feet on Sixth street, 300 feet on Dumont avenue, 129.4 feet on Seventh street, and on the east was bounded by a straight line drawn from a point on the north side of Sixth street, 262.7 feet east of Dumont avenue, to a point on the south side of Seventh street, 129.6 feet east of said Dumont avenue. That the Chicago, Milwaukee & St. Paul Railway Company is a subsequent purchaser, with notice, of a portion of the premises. That said Prior never reconveyed to plaintiff any portion of the said quarter section. That the streets and alleys made by the platting of the premises in question were legally dedicated to the public use of the town of Woonsocket. The principal prayer of the complaint is that the defendant Charles H. Prior be required to duly execute and deliver to plaintiff a good and sufficient deed for a block of land 300 feet square, which shall include plaintiff's residence; or, in case of the refusal of said Prior so to do, that the court appoint some person to make such conveyance.

All facts sufficiently pleaded are admitted by the demurrers of defendants; consequently the only question for this court to determine is, (taking the statements of the complaint to be true,) can a court of equity grant the relief prayed for? It will be observed that the plaintiff does not ask that defendant Prior be compelled to convey to him block 29 as platted, but a block of land 300 feet square, which shall include within its boundaries the plaintiff's dwelling-house. In order to do this, the court would be obliged to replat the town of Woonsocket. The district court of Sanborn county was asked to grant the relief prayed for because in the deed of conveyance from the plaintiff to Prior there was a reservation of a block of land where plaintiff's dwelling-house stood, and by the written memorandum executed about the same time said block was to be an averaged-sized block not exceeding 300 feet square. We think the district court did right in sustaining the demurrers of defendants, for the reason that the contract set forth in the complaint is too...