Moore v. Dykstra, 78.

• Decision Date: 02 June 1930
• Docket Number: No. 78.,78.
• Parties: MOORE et ux. v. DYKSTRA.
• Court: Michigan Supreme Court

250 Mich. 656

231 N.W. 69

MOORE et ux.

v.DYKSTRA.

No. 78.

Supreme Court of Michigan.

June 2, 1930.

Appeal from Circuit Court, Muskegon County, in Chancery; John Vanderwerp, Judge.

Suit by Edward Moore and wife against Dora Dykstra, wherein defendant filed cross-bill. Decree for plaintiffs, and defendant appeals.

Affirmed.

Argued before the Entire Bench.Galpin, Smedley & Dunn, of Muskegon, for appellant

Robert R. Gale, of Muskegon, for appellees.

FEAD, J.

September 18, 1926, plaintiffs sold defendant, on contract, the southerly 30 feet of a certain lot in Muskegon. They had some conversation to the effect that plaintiffs wanted to reserve a right of way for a driveway on the north side of the premises. Defendant did not want a reservation in the contract but agreed to give a separate instrument later. On November 27th she executed to plaintiffs an instrument, under seal and acknowledged, that: ‘Said first party for and in consideration of one dollar and other valuable considerations hereby gives second parties and their assigns the right to use a certain driveway on the north side of said thirty feet for the purpose of driving in from Spring street to the back of said lot and to the garage over the driveway as now constructed and located on the north side of said above described thirty feet, and as long as this privilege of right of way is in force.'

The instrument contained other provisions as to upkeep, use by defendant, and revocation for nonuse or misuse by plaintiffs. In 1928 defendant erected a wire fence which obstructed the right of way, and plaintiffs brought this suit and had decree to compel removal of the obstruction.

We agree with the chancellor that defendant's claim of fraud and misunderstanding of the instrument was not sustained by the evidence. The scrivener read and explained the instrument to her and she executed it voluntarily and with knowledge of its terms. The location of the right of way was not indefinite, as the physical situation of the premises established it along the north line. Defendant was equitable owner, had right of and actual possession, and her grant was operative as to her and her title. No special consideration was necessary as between the parties. Barber v. Milner, 43 Mich. 248, 5 N. W. 92;Gale v. Gould, 40 Mich. 515. The specific uses to which the plaintiffs may put the driveway and the conditions of forfeiture are not before us. Defendant has shown no valid revocation nor justification for...