Taylor v. Deverell

• Decision Date: 04 April 1890
• Citation: 43 Kan. 469,23 P. 628
• Parties: SARAH M. TAYLOR et al. v. BRIDGET DEVERELL
• Court: Kansas Supreme Court

23 P. 628

43 Kan. 469

SARAH M. TAYLOR et al. v. BRIDGET DEVERELL

Supreme Court of Kansas

April 4, 1890

Error from Saline District Court.

ACTION brought by Bridgett Deverell against Sarah M. and Jasper Taylor, to reform and correct the description in a certain conveyance of real estate theretofore made by the Taylors to the plaintiff. The cause was tried at the May term, 1887, and the court, upon request, and after hearing the testimony made the following findings of fact and of law:

"1. The plaintiff was the owner of 16 acres of land in Saline county, and she placed the same in the hands of Carlin &amp Supple, real-estate agents, of Salina, for sale.

"2. The defendant Sarah P. Taylor was the owner of a piece of land in the suburbs of the city of Salina, beginning east of Front street and on the north side of the Missouri Pacific Railroad; this land was bounded on the north by an alley west by Front street, south by the Missouri Pacific Railroad and ending in a point at the east; and containing in all about two and one-half acres.

"3. The defendants were husband and wife.

"4. The defendants placed their land in the hands of Carlin &, Supple, real-estate agents, for sale.

"5. Carlin & Supple, knowing the wants, introduced the parties, Robert Deverell, husband of plaintiff, and Jasper Taylor, of the defendants, who arranged for a trade of 160 acres of land of the plaintiff for a portion of the two and one-half acres.

"6. It was agreed tat the defendant would deed to the plaintiff, in consideration of her 160 acres, an acre and a half of the west front of the two-and-a-half-acre tract.

"7. Robert Deverell and Jasper Taylor, in order to get the number of feet that piece would be, measuring from the west line toward the east, measuring with a tape line 50 feet long, Robert Deverell carrying the end with the ring on, and Jasper Taylor carrying the rear end having the number on the line.

"8. They measured from the northwest corner, through and along the north line fence, and Taylor took Deverell's knife and cut a notch in the top board of the fence.

"9. Taylor saying that it measured 166 feet.

"10. They then measured from the west, along a fence about the middle of the lot from north to south and extending from the west line east to a point as far east as the notch on the north fence they had made. This point being at the east point at the east end of the fence.

"11. Jasper Taylor told Mr. Supple, who made the deed, that the ground was 166 feet from east to west.

"12. Supple took the order of description from an old deed, and wrote 166 feet in as he had been told by Taylor.

"13. Deed was made December 8, 1886, and on the 10th or 11th Supple delivered it to Robert Deverell, who placed it on record on the 10th day of December.

"14. Some few days afterward Deverell was on the ground and Jasper Taylor said to him, 'Your 166 feet only corner to those cherry trees,' pointing and referring to two trees near the north end and in line with one that stood near the south line, and at that time Deverell disputed with Taylor and showed him the notch that they had made in the north fence, and claimed all the land west of that notch and a line running north to the end of the middle fence.

"15. The original amount of the land was to include all of the orchard.

"16. The 166 feet would leave the greater portion of the orchard on the east of the line on the end that Taylor keeps.

"17. 224.06 feet east and 276 north and south would contain only one acre and 724-1815 of an acre, or less than one and one-half acres.

"18. Said deed should be changed so as to read 226 feet, instead of 166 feet."

The court adjudged and decreed that the deed should be corrected by describing the piece of land to be the west 226 feet of the tract, instead of the west 166 feet, as was described in the deed, and that the plaintiff be invested with the full and complete title to so much of the land as is thus described.

A motion for a new trial was made and overruled, and defendants bring the case to this court for review.

Judgment affirmed.

Mohler & Millikin, for plaintiffs in error.

H. S. Cunningham, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

After reading the record we are prepared to concur in the conclusion of the district court.

It is urged that the petition does not set forth facts which would warrant a reformation of the deed on account of the fraudulent representations and conduct of the defendants in the court below. It sets forth in substance that the parties agreed to exchange lands, Mrs. Deverell giving a quarter-section for a small tract of land of irregular shape which appears to be in or adjoining the city of Salina. The latter was a portion of a 2 1/2 acre tract, and it was agreed that Taylor should convey so much of the whole as extended from the west side to a certain named point; and to ascertain the dimensions of the tract so as to...