Kobylinski v. Szeliga, 14.
| Decision Date | 29 November 1943 |
| Docket Number | No. 14.,14. |
| Citation | 11 N.W.2d 899,307 Mich. 306 |
| Parties | KOBYLINSKI et ux. v. SZELIGA et ux. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Roman Kobylinski and his wife agaisnt Paul Szeliga and his wife to enjoin defendants from using a driveway, in which defendants filed a cross bill for reformation of a deed. From a decree granting reformation and from an order denying plaintiff's petition for rehearing and for leave to file an amended bill of complaint, plaintiffs appeal.
Affirmed.
Appeal from Circuit Court, Wayne County, in Chancery; Thomas J. Murphy, Judge.
Before the Entire Bench.
Harry J. Lippman, of Detroit (Leslie Bloom, of Detroit, of counsel), for appellants.
Nicholas S. Gronkowski, of Hamtramck, for appellees.
This case involves a dispute over a private driveway between the adjoining residence properties of plaintiffs and defendants in the city of Detroit.
On May 9, 1936, defendants owned certain property having a frontage of 64 feet on Harold street and described as the south 120 feet of lot 218, Shipman's subdivision. On that date defendants sold the west 32 feet of said property, together with house thereon, to plaintiffs on a land contract, which contained the following driveway provision:
Thereafter plaintiffs resided on the property which they had purchased, and defendants resided on their adjoining property, their houses being about 12 feet apart. On May 17, 1940, plaintiffs paid the balance then remaining due on the contract and were entitled to a warranty deed. The parties employed an attorney who prepared a deed, which was executed by defendants, delivered to plaintiffs, and duly recorded. However, such deed did not contain any provision for a mutual driveway.
Trouble developed over defendants' use of such driveway, and in May, 1941, plaintiffs filed bill of complaint to enjoin defendant from using any part of plaintiffs' property for driveway purposes. Defendants filed answer and also cross bill in which they alleged, in substance, that under the driveway provision in their land contract of May 9, 1936, they had the right to use said driveway in common with plaintiffs; that in April, 1941, they discovered that the attorney who prepared their deed of May 17, 1940, to plaintiffs, ‘through error, mistake or carelessness,’ had failed to provide in such deed for the mutual driveway, but that they were informed by said attorney that the recording of their land contract protected their right to such driveway. Defendants asked that their deed to plaintiffs be reformed to include the land contract provision relative to a mutual driveway and to provide for the use of such driveway by plaintiffs and defendants in common.
The case was tried and a decree entered determining that the driveway provision was omitted from the deed through the ‘inadvertence, omission or mistake’ of the attorney who prepared it; and that the deed should be reformed to provide for a mutual driveway over the property of plaintiffs and defendants, the same to be used only for driveway purposes.
Twenty days after the decree was entered, plaintiffs filed a petition for rehearing and for leave to file an amended bill of complaint. In their petition plaintiffs alleged, in substance, that they ‘are now in position to produce newly discovered evidence’ that the land contract in question was not executed by plaintiff Roman Kobylinski on May 9, 1936, as stated therein, but was in fact executed by him on Sunday, May 10, 1936; that because of such Sunday execution the driveway provision of the contract was void (2 Comp.Laws 1929, § 9078, Stat.Ann. § 18.851) and could not be enforced by a decree in the present suit. In their petition plaintiffs further alleged that the defense of such Sunday execution was not raised in their pleadings or upon the trial because of ‘ignorance of the legal importance of the execution.’ Defendants answered such petition, alleging that they acted in good faith; that they had no knowledge that plaintiff Roman Kobylinski executed the land contract on Sunday; that he should not be permitted to take advantage of his own wrongdoing; and that the fact of such alleged Sunday execution was known to plaintiffs at the time of trial and did not constitute newly discovered evidence. It was admitted that plaintiff Kazmiera Kobylinski executed the land contract on Saturday, May 9, 1940, as therein stated.
The court denied plaintiffs' petition for a rehearing and for leave to file amended bill of complaint, on the ground that plaintiffs had knowledge of such alleged Sunday execution at the time of trial and for several years prior thereto and that such fact did not constitute newly discovered evidence; also that, having failed to raise the question of such Sunday execution during the trial, plaintiffs could not later raise it on petition for rehearing. Plaintiffs appeal both from the decree granting reformation of the deed in question and from the trial court's order denying their petition. This being a chancery case, we review the same de novo.
Having brought this suit in equity, plaintiffs cannot, for reasons hereinafter stated, take advantage of their claim that one of them executed the land contract on Sunday. In such contract the parties expressly agreed that there should be a mutual driveway between their respective houses. Defendants had used such driveway, which was not improved or paved, for several years prior to their sale of the property to plaintiffs. Plaintiffs purchased with knowledge of the existence of such driveway, which was located in part upon their land and in part upon defendants' land. Defendants continued to use such driveway for fuel deliveries and for access to their garage located at the rear of their property, and plaintiffs used it in a limited way for deliveries of fuel and building materials.
There was some argument and trouble between the parties over the use of such driveway, but the record does not indicate that they ever mutually agreed to change or abandon the driveway provision of their land contract. It may reasonably be inferred that defendants' reservation of such mutual driveway was one of the considerations for the sale of a part of their property to plaintiffs. In May, 1940, when plaintiffs paid the balance due on their land contract and were entitled to a warranty deed, the parties mutually employed an attorney, who had previously represented plaintiffs, to prepare such deed. The attorney had the land contract in his possession at that time, and his testimony is particularly important. He said in part:
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