Jones v. Pashby

• Decision Date: 07 October 1886
• Court: Michigan Supreme Court
• Parties: JONES and others v. PASHBY and others.

29 N.W. 374

62 Mich. 614

JONES and others v. PASHBY and others.

Supreme Court of Michigan

October 7, 1886

Error to St. Joseph.

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

D.C. Page and Keightley & Knowlen, for defendants.

CHAMPLIN J.

March 30, 1868, one Ann Ewing was the owner of certain lands situated in the county of St. Joseph, Michigan, known as the "east half of the north-west quarter, and the east half of the south-west fractional quarter, of section thirty-six in township seven south, range eleven west." Her title was obtained by deed from one Alexina Fullum, and on the same day she conveyed the same by warranty deed to James and Charles Richardson. On the twentieth of May, 1872, James Richardson and Charles Richardson, respectively, executed quitclaim deeds to each other of certain portions of said land by way of dividing the same between them. The deed from James Richardson to Charles Richardson describes the lands thereby conveyed as follows: "The west half of the east half of the north-west quarter, and the west half of the east half of the south-west fractional quarter, all in section 36, township 7 south, of range 11 west, containing fifty acres of land, being the west half of one hundred acres of land deeded by Alexina Fullum to Ann Ewing and Charles Ewing, her husband, on the thirteenth day of October, 1866. The party of the first part reserves to himself and his heirs one-half of all fruit that grows on the orchard now on the above-described land, the house, and sufficient yard for the use of said house, for a term of ten years; and it is further agreed between the above-named parties that, if the said James Richardson sells the east half of the land deeded to him and Charles Richardson by Ann and Charles Ewing, the reservation of the house and the one half of the fruit trees shall cease, and be null and void." The quitclaim deed from Charles Richardson to James Richardson, of May 20, 1872, describes the lands thereby conveyed as follows: "The east half of the east half of the north-west quarter, and the east half of the east half of the south-west fractional quarter, all in section 36 in township 7 south, of range 11 west, containing fifty acres of land, being the east half of one hundred acres of land deeded by Alexina Fullum to Ann Ewing and Charles Ewing, her husband, October 13, 1866." October 5, 1872, James Richardson conveyed by warranty deed his portion of said lands to Robert Mandigo, describing them in the same terms as in the aforesaid deed from Charles Richardson to him.

Robert Mandigo and wife, on the thirtieth day of January, 1875, by a warranty deed in form, but intended as a mortgage, conveyed or mortgaged the same premises to Robinson Pashby, one of the defendants describing them in the same way. Prior to this, however, Mandigo had built on the premises in dispute the house called in the record the "Lake View House," and made other improvements thereon in the way of barns, sheds, trees, etc. After receiving this mortgage deed, Robinson Pashby, in March, 1876, went into possession of the premises in dispute, as well as all the premises therein described, and by himself or by his tenants has ever since continued in the possession, use, and cultivation of the same. On the nineteenth of March, 1877, Robinson Pashby filed his bill in the circuit court for the county of St. Joseph, in chancery, against Robert Mandigo and wife, and the plaintiffs in this suit as defendants, to have his said deed of January 30, 1875, declared to be a mortgage, and to have the same foreclosed. The said defendants severally put in their answers, with the exception of Mrs. Mandigo, and the bill and these answers were all put in evidence on the trial of this suit in the circuit court. Most of the material allegations in the bill were denied by Mandigo in his answer, and particularly the amount claimed by Pashby to be due him from Mandigo, and a claim for an accounting by Pashby for the rents and profits of the premises while he had been in possession was set up by Mandigo. The answer of Mandigo was adopted by the other defendants as their answer; they each claiming also a lien on the premises as judgment creditors of Mandigo by virtue of execution levies thereon, which were the occasion of their having been made parties defendant in the same bill. In the testimony given on the part of the defendants in that chancery suit the rental value of the premises, in connection with and as increased or affected by the Lake View House as being on the same, was considered, and its value testified to and its use. The court declared the deed from Mandigo to Pashby to be a mortgage, and a large amount to be due thereon after the accounting was had, and ordered a sale of the premises to satisfy the same, and they were subsequently sold, under said decree, to Robinson Pashby for $2,500, and he received the commissioner's deed on June 29, 1878.

The plaintiffs' source of title also springs from Ann Ewing, and flows in the same channel as defendants,'--to James and Charles Richardson, and from Charles Richardson and wife to plaintiffs, dated May 7, 1878, and recorded the next day, which contains and purports to convey the following description of land: "Beginning at the south-west corner of the east half of the east half of the north-west quarter of section 36, town 7 south, range 11 west; thence south, 3 and 3/4 degrees west, 4.42 chains; thence south, 80 and 3/4 degrees west, 4.17 chains; thence south, 24 and 3/4 degrees west, 1.60 chains, to Klinger's lake; thence, along the meanderings of said lake, south-easterly as follows: south, 61 and 1/4 degrees east, 5.44 chains; thence south, 3 and 3/4 degrees east, 3.60 chains; thence, leaving the lake, north 11.04 chains, to the east and west quarter line of said section 36; thence west along said quarter line 2.76 chains, to the place of beginning,--containing 4 and 1/2 acres, be the same more or less, being a part of the south-west fractional quarter of section 36, town 7 south, of range 11 west."

The premises in dispute are described in the plaintiffs' declaration as follows: "Beginning at the south-west corner of the east half of the east half of the north-west quarter of section number thirty-six, in township number seven south, of range number eleven west; thence south along the division line between the east and west halves of the east half of the north-west quarter of said section produced 9 36-100 chains, to Klinger lake; thence, along said lake, south, 58 3/4 degrees east, 3 23-100 chains; thence north 11 4-100 chains, to the east and west quarter line of said section; thence west, along said quarter line, 2 76-100 chains, to the place of beginning. And whereas, the said plaintiffs, on the said first day of August, A.D.1878, were also possessed of the following lands, also situate in the said township of White Pigeon, county of St. Joseph and state of Michigan, and being known and described as follows, to-wit: Beginning at the south-west corner of the east half of the east half of the north-west quarter of section thirty-six, township number seven south, of range number eleven west; thence south, along the division line between the east and west half of the east half of the north-west quarter of said section produced, 9 36-100 chains, to Klinger's lake; thence, along said lake, south, 58 3/4 degrees east, 67-100 chains; thence north 9 71-100 chains, to the east and west quarter line of said section; thence west along said quarter line 57-100 chains, to the place of beginning."

The case will be better understood from the following diagram:

RPT.CC.1886005048.00010

(Image Omitted)

The whole diagram includes the lands conveyed by Ann and Charles Ewing to Charles and James Richardson described in the deed from Alexina Fullum to the Ewings as containing 100 acres. The line, 1, 3, is a line which is equidistant from the east and west lines of the tract, and is the line contended for by the defendants as dividing it into east and west halves. The line, 4, 5, is a line which would divide the whole tract into two 50-acre parcels. If the 80 acres should be divided into two 40-acre lots, and the E. 1/2 of the S.W fractional 1/4 should be so divided by a north and south line as to give to each owner a like quantity of 50 acres, then the division line in this fraction...