Jones v. Pashby

• Decision Date: 21 June 1882
• Citation: 12 N.W. 884,48 Mich. 634
• Court: Michigan Supreme Court
• Parties: JONES and another v. PASHBY and another.

12 N.W. 884

48 Mich. 634

JONES and another v. PASHBY and another.

Supreme Court of Michigan

June 21, 1882

The word "half" in descriptions of premises conveyed by deed is not to be understood literally if a different sense is indicated by the context, by accompanying circumstances or by subsequent acts of the parties.

Land was so partitioned by mutual conveyance as to make it uncertain where the dividing line lay. A subsequent grantee of one portion built a house on the doubtful strip and mortgaged it, and the mortgagee went into possession. On foreclosure certain persons impleaded as subsequent encumbrancers made it part of their defence that the mortgagee should account for rents and profits, and decree was rendered on that basis. Held that they were thereafter estopped from bringing ejectment for the disputed strip as grantees from the adverse claimant.

Error to St. Joseph.

H.H Riley and John B. Shipman, for plaintiffs and appellants.

D.C Page and Charles Upson, for defendants.

COOLEY J.

Ejectment. On March 30, 1878, Ann and Charles Ewing conveyed to James and Charles Richardson lands situated in the county of St Joseph described in the deed as "the E. 1/2 of the N.W 1/4 and the E. 1/2 of the S.W. fractional 1/4, all in section 36 in township 7 south, of range 11 west, containing 100 acres." The first of these parcels was an 80-acre lot in regular and customary form; the second was made fractional by a small lake which formed its southern boundary, the shore of which appears to have been variable, but at that time ran in a south-easterly and north-westerly direction. This parcel contained not quite 20 acres. The United States survey was not put in evidence to show either the lines or quantity. May 20, 1872, James Richardson conveyed to Charles Richardson his interest in "the W. 1/2 of the E. 1/2 of the S.W. fractional 1/4" of said section 36, "containing 50 acres of land" deeded as aforesaid. On the same day Charles Richardson conveyed to James Richardson his interest in the east half of the same lands, describing it as containing 50 acres. James Richardson conveyed by the same description to Robert Mandigo, October 5, 1872, and Robert Mandigo conveyed to Robinson Pashly, January 30, 1875. This last conveyance was made to secure the payment of an indebtedness, and Pashly afterwards proceeded in chancery for a foreclosure, making the plaintiffs in this suit parties as subsequent encumbrancers. He obtained decree June 15, 1878, under which the lands were sold and bid in by himself.

After this sale had been made a controversy sprung up respecting the dividing line between the east and west halves of the lands described in the Ewing deed. If that line were run equidistant between the east and west boundary lines of the tract, the east parcel would contain five acres and upwards more than the other. It was agreed by all parties that the north parcel must be so divided as to make two 40-acre lots in regular form; and Pashby contended that the same line which divided the north parcel should be extended through the south parcel also. Those interested in the west half on the other hand insisted that the south parcel should be divided by a north and south line giving equal quantities on either side of it. Acting upon this claim the plaintiffs in this suit took from Charles Richardson a deed of the land on the south parcel lying between the line dividing that parcel through the center, and the line which would make of the parcel two equal portions, and brought ejectment for it. A diagram of the parcel, showing the land in dispute, is given in the margin. ^[*] The principal value of the land in controversy consists in a building known as the Lake View House, which was built by Mandigo as a...