Slater v. Breese

• Decision Date: 04 April 1877
• Citation: 36 Mich. 77
• Court: Michigan Supreme Court
• Parties: Sylvester Slater v. Jacob W. Breese and others

36 Mich. 77

Sylvester Slater v. Jacob W. Breese and others

Supreme Court of Michigan

April 4, 1877

Heard January 9, 1877

Appeal in Chancery from Lenawee Circuit.

Decree affirmed, with costs.

Weaver & Welsh and A. L. Millard, for complainant.

Stacy & Underwood and Walker & Weaver, for defendant Breese.

Graves J.

OPINION

Graves, J.:

The printed record in this case is replete with inconsistencies and inaccuracies, and especially in regard to dates, and much embarrassment has been consequently experienced in threading the details. The material facts are, however, believed to be sufficiently ascertained and understood to authorize conclusions upon the merits.

The bill was filed April 26, 1875, to foreclose a mortgage made July 29, 1867, by the defendants Theodore and Joseph Rogers to one Sarah L. Ashley, and by her assigned to complainant June 11, 1868. It would seem that Mrs. Ashley conveyed the premises to the mortgagors by deed dated July 24, 1867. The mortgage embraced a little less than fifty acres, and comprised three irregular shaped, but contiguous parcels, and one of these parcels included premises called the grist-mill lot or property, of a little more than three acres with a mill and its appurtenances, a saw-mill lot lying very near, of a little over an acre and a half, and also a piece of a few rods in extent, called the piece between. Before hearing, the cause was discontinued as against the defendant Wright. As to the rest of the defendants, except Dye and Breese, the bill was taken as confessed. Dye answered, and it appeared he had no interest except as to a parcel of about five and a half acres on one end of one of the three great parcels in the mortgage. He had bought this, with other lands, of defendant McOmber, and his position was, that Mrs. Ashley released it from the mortgage before she assigned to complainant. The court sustained this defense and finally dismissed the bill as to Dye. Breese answered, and claimed, among other things, that March 7, 1870, the defendant Emma Sweet mortgaged to the defendant Joseph Rogers all the premises in the Ashley mortgage except the two mill lots and appurtenances, the piece between, and the Dye parcel of five and a half acres; that this mortgage was assigned to him by Rogers; that he foreclosed under the statute in 1872 and became the purchaser and went into possession, and has since held possession and used and improved the property.

July 24, 1876, foreclosure was granted and Breese appealed. The controversy is confined to complainant and Breese, and Breese's right to contend is based finally upon his interest under the subsequent mortgage. He is a subsequent incumbrancer of a portion of the premises claimed to be embraced by the mortgage sought to be foreclosed. There is no equity between co-defendants to be settled. The questions made relate to the description in the bill and mortgage, the relative equities of complainant and Breese in the matter of working out a satisfaction of complainant's mortgage through sale of the property in that mortgage, and the propriety of certain proceedings in the cause. It is perhaps best to dispose of the points concerning the description at the outset. It is objected, in the first place, that there is a fatal variance between the description in the bill and in the mortgage, and in the second place, that there is an entire lack of description of the land in the mortgage. This last objection may be first considered.

The grounds of the objection are, that no town, county or state is mentioned, or any circumstance or thing referred to, to fix the location, and that in regard to the first and second descriptions, no commencement is given.

It is not essential to the validity of a grant that the property should be so described as to avoid the necessity of an appeal to extrinsic proofs to apply the grant to the property. The subject matter must undoubtedly be so earmarked in the grant as to be capable of being distinguished from other things of the same kind. But it is always competent to fix and identify by extrinsic proof the natural monuments and other badges of identity and connect the description in the deed with the material subject matter dealt with by it.--Blake v. Doherty, 18 U.S. 359, 5 Wheat. 359; see also Wilson v. Boyce, 92 U.S. 320, 2 Otto 320.

The property to be granted may have a particular name by reputation, and if so it may be described by such name, without giving monuments, boundaries or the like.--Goodenow v. Curtis, 18 Mich. 298; Sargent v. Adams, 3 Gray 72; Woods v. Sawin, 4 Gray 322; Gerrish v. Towne, 3 Gray 82; and outside evidence may be resorted to, to apply the name to that which it signifies. Indeed, the instances are rare in which no help whatever is required. If the means are given in the grant, either by a name of notoriety or by specified monuments and other definite particulars, to identify the thing meant to be granted, with the aid of outside examination and proof to fix and determine the monuments and other particulars or connect the name with the thing, the description is prima facie sufficient.

And omitting to name the state, county and township will not prejudice, where other adequate elements of identification exist.--Russell v. Sweezey, 22 Mich. 235; Atwater v. Schenck, 9 Wis. 160; Mecklem v. Blake, 19 Wis. 397; Pursley v. Hayes, 22 Iowa 11; Ives v. Kimball, 1 Mich. 308.

It is also well settled that if there are descriptive signs satisfactorily ascertained which designate the thing meant to be granted, the addition of circumstances or accompaniments which are untrue will not defeat the grant. They may be rejected.--Worthington v. Hylyer, 4 Mass. 196. This principle is confirmed and its application illustrated in numerous cases. Among others, see the following: Ives v. Kimball, 1 Mich. 308; Anderson v. Baughman, 7 Mich. 69; Loomis v. Jackson, 19 J. R., 449; Jackson v. Marsh, 6 Cow. 281; Jackson v. Clark, 7 J. R., 217; Doe v. Roe , 1 Wend. 541; Hathaway v. Power, 6 Hill 453; Gouverneur v. Titus, 1 Edw. Chy. R., 477; Peck v. Mallams, 6 Seld. 509 per Johnson J.; Hannum v. Kingsley, 107 Mass. 355; Lyman v. Loomis, 5 N.H. 408; Barnard v. Martin, Id., 536; Johnson v. Simpson, 36 N.H. 91; Smith v. Strong, 14 Pick. 128; Doane v. Willcutt, 16 Gray 368; Thatcher v. Howland, 2 Met. 41; Hull v. Fuller, 7 Vt. 100; Law v. Hempstead, 10 Conn. 23; McChesney v. Wainwright, 5 Ohio 452; Eggleston v. Bradford, 10 Ohio 312; Stringer v. Young's Lessee, 3 Pet. 320; Barclay v. Howell's Lessee, 6 Pet. 498; Lodge's Lessee v. Lee, 10 U.S. 237, 6 Cranch 237; Parker v. Kane, 63 U.S. 1, 22 HOW 1.

Now it is quite plain that the descriptive part of complainant's mortgage has some inaccuracies, but it is equally plain that the terms of the description when taken together are abundantly sufficient, with such aids as are admissible, to identify the land.

There are several monuments and particulars given, and they are arranged in definite space relations to distinguish the exact location and define the premises, and no other place in the world could be found marked out by such a combination of features. We have two highways, the river Tiffin, a bridge, a ravine, the south line of Power's land, certain lines of sections, and these are spaced off, one from another, by course and distance.

Then the description represents the land as being on sections one and twelve in township eight south of range one east.

When we come to traverse these sections to find the land, we discover the river, the two highways, the ravine, the bridge, and Power's south line, all arranged in the relative positions indicated.

We turn to the mortgage and find the first and second descriptions have the same starting point, and that both parcels are capable of being run out as one. At the same time we notice that such starting point is the quarter stake on the southwest corner of the southeast quarter of a section, but that the conveyancer either omitted the number of the section, or by mistake called it number "eight." An examination of the phraseology and of the government lines and the land marks given in the mortgage and found on the ground at once explain the matter and show that the number of the section was left out and that the word "eight" was intended as the number of the township. Bearing in mind that the first and second parcels have the same starting point, to-wit: the quarter stake on the southwest corner of the southeast quarter of a section, we observe that according to the description of the second parcel, there is a call for a highway at the end of the first course, and also for one at the end of the second course, and for the centre of the Tiffin river at the end of the fourth, whilst the fifth is required to run near the centre of that river and the sixth to terminate at Power's south line. These marks are found, and it becomes clear that the starting point for the two parcels was meant to be at the quarter post on the southwest corner of the southeast quarter of section one.

The ascertained particulars imperatively require section one as the section containing the quarter at the corner of which the quarter post mentioned is situated.

It is still objected that where the mortgage gives the sections, township and range, it places the first parcel on the west half of the northeast quarter of twelve, whereas the other terms place it on the east half of the northwest quarter, and that it also places the second parcel on the west half of the southeast quarter of section one, instead of the east half of the southwest quarter, where it is claimed to be.

The landmarks given in the mortgage, and the facts found on the ground, conclusively identify the property without resort to these superadded circumstances,...