Plummer v. Gould

• Decision Date: 20 May 1892
• Citation: 52 N.W. 146,92 Mich. 1
• Court: Michigan Supreme Court
• Parties: PLUMMER v. GOULD et al.

52 N.W. 146

92 Mich. 1

PLUMMER v. GOULD et al.

Supreme Court of Michigan

May 20, 1892

Error to circuit court, Saginaw county; CHAUNCEY H. GAGE, Judge.

Ejectment by Charles H. Plummer against Erastus F. Gould and James B Peter. There was a judgment for defendants, and plaintiff brings error. Affirmed.

Tarsney & Weadock, for appellant.

Hanchett, Stark & Hanchett, for appellees.

LONG J.

Plaintiff brought ejectment for a strip of land between blocks 59 and 60 of Hiram C. Driggs' plat of the Penoyer farm, as an addition to the city of Saginaw, in the state of Michigan. The strip conveyed is called "Ninth Street" on the plat, and is described in the declaration as "all that certain piece or parcel of land situate lying, and being in the city of Saginaw, in said state, and known and designated as 'Ninth Street,' being sixty-six feet in width, and extending from the north line of 'Irving Avenue,' so called, on the south, to the south line of 'Congress Avenue,' so called, on the north, through and between blocks 59 and 60 of Hiram C. Driggs' plat of 'Penoyer Farm,' so called, of record in the office of the register of deeds for Saginaw county, Michigan, which said premises the plaintiff claims in fee." The following plat shows the situation of the premises:

RPT.CC.1892004156.00010

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The parties claim title from the common grantor, Hiram C. Driggs. It appears that on November 25, 1864, Hiram C. Driggs, being sole owner of 320 acres of land on sections 23 and 24, township 12 N., of range 4 E., platted it into blocks, lots, and streets as an addition to the city of Saginaw. The piece of land in controversy is one of a portion of one of the streets so platted. This plat was executed and recorded in accordance with the act of 1839 then in force. The act provides "that the owner shall cause a true map to be made by a surveyor, acknowledged by the owner and surveyor, and shall cause the same to be recorded, before any lots therein are offered for sale, and provides a penalty for any sale before such platting and recording shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public uses in the county, in trust to and for the uses and purposes therein named; that proceedings shall be had before the circuit court, under certain conditions, to vacate the plat, or parts thereof, wherein notice to all persons interested shall be given; and, if the plat or any portion of it is vacated, the street or alleys vacated shall attach to the lots bordering on such streets and alleys, and the title thereto shall vest in the persons owning the property on each side to the center of such street or alley." 1 How. St. � 1478. On November 22, 1865, Hiram C. Driggs, the proprietor of the plat, conveyed, by a quitclaim deed, "the equal undivided one third of all the right, title, interest, claim, or demand" of himself in those certain parcels of land known as "Penoyer Farm," described as N.E. 1/4 of section 23, and N.W. 1/4 of section 24, township 12 N., of range 4 E., and other land, to John F. Driggs. On May 27, 1869, Hiram C. Driggs and wife conveyed by warranty deed to John F. Driggs a large number of lots and blocks in said "Penoyer Farm," and, among others, the lots bordering on the strip of land in controversy in blocks 59 and 60, as indicated on the plat heretofore set out. The property was described in the conveyance as: "On the plat of 'Penoyer Farm,' so called, in the city of Saginaw; the said plat being recorded in the office of the register of deeds on the 25th day of November, 1864, in Liber No. 38 of Deeds, at page 73, and to which reference is here made. The parties to this instrument are tenants in common of the above-described property, and executed the same as a partition deed." On November 18, 1871, John F. Driggs and wife executed and delivered to Erastus F. Gould, one of the defendants in this suit, a mortgage upon a number of lots and blocks in Penoyer farm, and, among others, the lots bordering on the strip of land in controversy, describing the lots and blocks as: "In the recorded plat of the Penoyer farm, in the city of Saginaw and county aforesaid." This mortgage was foreclosed, and title thereunder to all the property described in the mortgage passed to Erastus F. Gould, April 18, 1879. In the commissioner's deed the lots are referred to as "in the Penoyer farm, Saginaw county, Michigan, according to the recorded plat of said Penoyer farm in the office of the register of deeds for Saginaw county, Michigan." On June 9, 1890, Erastus F. Gould conveyed to James B. Peter, the other defendant, by warranty deed, certain lots and blocks in said Penoyer farm, among others the lots bordering on the strip in controversy, and described "as designated on the map or plat of an addition to the city of Saginaw, Michigan, known as 'Penoyer Farm,' said map or plat being in common use, and of record in the register's office." The land within this plat has been assessed by lots and blocks ever since 1864.

The plaintiff's case is based solely upon a conveyance made April 9, 1880, by the heirs of John F. Driggs to himself and A. T. Bliss and brother, and a deed from Bliss & Bro. to him. The consideration expressed in this first deed is the sum of one dollar, and other valuable considerations to them in hand paid, the deed conveying certain lands by specific descriptions. None of these descriptions covers the land in controversy here. The deed contains a clause conveying lands not specifically described, as follows "And the said first parties do hereby convey to said second parties all their right, title, claim, and interest in...