Purkiss v. Benson
| Decision Date | 27 January 1874 |
| Citation | 28 Mich. 538 |
| Court | Michigan Supreme Court |
| Parties | William Purkiss and others v. Henry Benson |
Heard January 8, 1874
Error to Bay Circuit.
Ejectment. Defendants bring error. Affirmed.
Judgment affirmed, with costs.
McDonell & Cobb and H. H. Hatch, for plaintiffs in error.
Green & Scofield and Ashley Pond, for defendant in error.
Christiancy J., did not sit in this case.
Benson brought ejectment for certain lands in Bangor plat, which he claimed by title originally derived from Joseph Trombley (who made the plat) to one Fredrick Lutzky, by deed dated December 6, 1858, but which had been previously purchased and possessed under a contract before the plat was made. Trombley originally owned the government subdivision including the entire plat.
The deed to Lutzky contained a somewhat awkward description which was as follows: All those certain lots, pieces or parcels of land as hereinafter described, to-wit: "Village or town lots one (1), two (2), and three (3), in block fourteen (14), and the fractional piece of land lying north of said lots, bounded as follows: north and northerly by the fractional line; east by Sophia street; west by lot four (4), in said block fourteen (14); and said fraction is bounded west by land owned by the parties of the first part, being a continuous line as it runs between lots three (3) and four (4), north to said fractional line, and bounded south by the public road, being one hundred and fifty feet wide on said public road, and running north to said fractional line, to be one acre deep more or less, reference being had to the village or town plat of Bangor," etc.
The parcel in dispute is a parcel lying south of lots one, two and three, as they are marked upon the map, and is claimed to be (as the jury have found the fact to be) bounded southerly by the center of a public road existing at the date of the deed, and not marked on the plan of Bangor, which is one of the ordinary paper plans regularly laid out at right angles, and showing nothing otherwise. The north line of the fraction runs diagonally a little to the south of east, as appears by the lines called north and south on the plat, and approaches lots one, two and three, according to one survey, so as to leave a space of twenty-four hundredths of an acre, and according to another, eleven hundredths. The quantity of land in the whole premises including that in dispute, bounded by the center of the road and extending north to the northerly line of the fraction, was eighty-three hundredths, or seventy hundredths, according to the different surveys.
The location of this public road became an important question on the trial. Lutzky was allowed to testify that when the scrivener was drawing the deed, "Trombley told me that lots one, two and three were right on the old road;" that Lutzky told Trombley he wanted no lots in the deed; that he wanted one acre; that Mr. Raymond, who was present and drew the deed, scratched a little out, and put one acre deep in, and that it was said that the one acre came down to the old road.
This testimony was objected to, but we cannot see upon what ground, and no ground was clearly given in the record or on the argument. Whatever ambiguity is in the deed does not appear on its face, but only by evidence. This proof is a part of the res gestoe, tending to identify the boundaries in dispute, and show where they were...
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