Morgan v. McCuin

• Decision Date: 21 November 1910
• Citation: 132 S.W. 459,96 Ark. 512
• Parties: MORGAN v. MCCUIN
• Court: Arkansas Supreme Court

132 S.W. 459

96 Ark. 512

MORGAN v. MCCUIN

Supreme Court of Arkansas

November 21, 1910

Appeal from Union Chancery Court; J. M. Barker, Chancellor affirmed.

STATEMENT BY THE COURT.

This is a suit in chancery commenced on the 12th day of August, 1909 by D. E. Morgan against E. J. McCuin, Mrs. N. McCuin and Neely Burton. The purpose of the action was to reform a certain deed executed by Morgan to Burton, and to recover possession of the land in controversy. E. J. McCuin claimed no title to the property, and the suit was discontinued as to him. The defendant Burton failed to answer, plead or demur but made default. The defendant Mrs. McCuin answered, denying the allegations of the complaint and setting up title in herself to the lands in controversy. The facts, so far as they are material to a decision of the rights of the parties are as follows:

On the 1st day of January, 1902, John Hill and Mary Hill, his wife by warranty deed, conveyed to the plaintiff, D. E. Morgan, the following described lands situated in the town of El Dorado, in Union County, Arkansas, towit:

Beginning at a point 60 feet due south of the southwest corner of block 21, shown on the plat of the town of El Dorado, Arkansas, thence south to right-of-way of the St. Louis, Iron Mountain & Southern Railway Company, thence in a northeasterly direction with said right-of-way to the western boundary of Jackson Avenue, thence north to a point 60 feet due south of the southeast corner of said block 21, thence west about 200 feet to the place of beginning.

On September 21, 1903, D. E. Morgan conveyed by warranty deed to Neely Burton a part of said lands. The description of said lands as contained in the deed are as follows:

"A strip or parcel of land in block 40 as shown on the town plat of El Dorado, Arkansas, and described by metes and bounds as follows: Beginning 228 feet south of the southwest corner of block 21, as a starting point on Hill Avenue, and running south along east Hill Avenue 49 feet to the right-of-way of railroad; commencing again at above starting point of this tract, and running east 60 feet to a stob, thence in a southwest direction with the right-of-way until this line intersects with the west line of this about 70 feet."

On September 22, 1903, Neely Burton conveyed the land to L. K. McKenney by deed containing the same description. On the 31st day of December, 1906, McKenney conveyed the land by the same description to J. R. Elder, who in turn reconveyed to Neely Burton. On the 14th day of March, 1908, Neely Burton conveyed the same land by deed containing the same description to Mrs. N. McCuin. The consideration named in the deed was $ 600, and the receipt of it was acknowledged.

Neely Burton testified that when he purchased the land from D. E. Morgan he only purchased the land outside of the inclosure, and that he did not know that a mistake had been made in the description of the land in the deed; that he never bought the land that was north of the fence, which he says was the boundary line between him and Morgan. In response to a question, he stated that if he had known about the mistake and could have done so he would have taken all the land his deed called for.

D. E. Morgan testified for himself, and said that when he sold to Neely Burton a part of the land was inclosed, and that he intended to sell and did sell to Burton only that part of it that was uninclosed; that, in order to obtain a correct description of the land to be conveyed to Burton, he had the part sold to him surveyed; that there was a house situated on the land conveyed to Burton, and that it was situated on the northwest corner of the land sold to him; that he supposed the southwest corner of the graveyard fence was the southwest corner of block 21, and he caused a line to be run from said corner to the northwest corner of Burton's house for a beginning point to be used in the description of the land in the deed from himself to Burton; that it afterwards turned out that the southwest corner of the graveyard was several feet south of the southwest corner of block 21. Morgan further testified that some weeks before Mrs. McCuin purchased from Neely Burton she and her husband approached him with a view of purchasing the land which he still owned; that they went on the land, and that he pointed out the fence between his land and Burton's as the boundary line between them; that when he first sold to Burton the fence between them was right up against Burton's house, and that he moved it three feet further north in order to obtain a passage way. Morgan further testified that, after Mrs. McCuin purchased the land from Burton, she had a survey made of the same, and from this survey, made in accordance with the description contained in the deed from Burton to Mrs. McCuin, it was found that the north boundary line was 15 feet north of and beyond his fence line; that Mrs. McCuin tore down the fence between them and set it on the boundary line as surveyed by her; that he noticed that his fence had been torn down and moved back; that he asked Mr. McCuin why he had done that, and McCuin replied that their lot went to that point, and that he replied that it did not; that McCuin said that their deed called for the land, and that they were going to have it; that he told McCuin that he would not stand that, and notified him not to put a house he contemplated building on the disputed strip; that this occurred in the spring or summer of 1908; that he went to see his lawyer at once, and told him that McCuin was going to build a hotel partly on his land, and directed him to institute suit at once to stop it; that his attorney informed him that it was not necessary to institute the suit at once; that he had no further conversation with the McCuins about the matter, and that they subsequently erected a hotel, about 15 feet of which was placed on this land claimed by him; that, after the erection of this hotel, he brought this suit for the purpose of reforming his said deed to Neely Burton and of obtaining possession of the disputed strip of land upon which the hotel was partly erected.

A. J. McCuin was the agent of his wife in the purchase of the land from Burton, and denied that he had any knowledge of any mistake having been made in the description of the land until this suit was brought; that when he purchased the land and when the purchase price was paid, he thought he was purchasing for his wife the land described in the deed; that, after the deed had been executed and the purchase price paid, they had the land surveyed preparatory to building a hotel on it; that when it was ascertained that the north boundary line was 15 feet north of and beyond the fence, which had been built by Morgan, he tore down the fence and removed it to the boundary line as established by the survey; that before the survey was made he notified Morgan personally of that fact, and that Morgan promised to be present when the survey was made; that Morgan came along after the survey had been made and after the fence had been removed, and said that the survey was wrong, and claimed that a part of his land was being taken by the survey; that he told Morgan that he could have the line resurveyed if he thought it was wrong, and told him that he wanted the line established so that he could build a hotel; that this conversation occurred in June, 1908, and Morgan went away and never had any further conversation with him in regard to the matter; that Morgan never had the land resurveyed, and in October, 1908, the erection of the hotel was commenced, and that it was finished about the first of the following February; that Morgan knew that the hotel was being partly erected on the strip claimed by him, and did not make any objection on that account.

McCuin admitted that he spoke to Morgan about buying his land prior to the time he purchased the land from Burton for his wife; but denied that Morgan told him that he owned all the land in the inclosure, or that he told him that the fence was the boundary line between him and Burton.

Mrs. N. McCuin testified for herself, and admitted that A. J. McCuin was her agent in the purchase of the property. She denied that she had ever been notified, or that she had ever heard that a mistake in the description of the property sold in the deed from R. E. Morgan to Neely Burton was claimed to have been made until this suit was brought. She admitted that she had been in El Dorado in February before the land was bought from Burton, and that at that time she looked at Morgan's property adjacent to it, but states that she never went on it, but merely looked at it in a general way as she walked down the street by it; that she paid $ 600 to Neely Burton for the land at the time she purchased it and received a deed therefor.

Joseph Miller testified that he was present when Morgan showed McCuin his land, which was adjacent to the Burton tract. When asked if Morgan pointed out the land he then owned, said: "Only in a general way"; and further stated that he thought the land was inclosed; that he acted as agent for the McCuins in purchasing the land from Burton, and he thought he was buying the property that was described in the deed, and did not know that there was a mistake in the description of the land in the deed; that Mr McCuin had previously talked with Burton about purchasing the property, and that he was acting under his instructions.

The chancellor found the facts and the law generally for the defendant Mrs. N. McCuin.

The decree was therefore entered dismissing the complaint for want of equity, and the plaintiff has duly prosecuted an appeal to this court.

Decree affirmed.

J. B....