Wiley v. Loveley

• Citation: 46 Mich. 83,8 N.W. 716
• Court: Michigan Supreme Court
• Decision Date: 27 April 1881
• Parties: WILEY v. LOVELEY.

8 N.W. 716

46 Mich. 83

WILEY v. LOVELEY.

Supreme Court of Michigan

April 27, 1881

A deed of lands described it as village lot number 77 of the original plat of the village of Fowlerville, as duly laid out, platted, and recorded in the office of the register of deeds for said county of Livingston. The plats as recorded did not show a lot 77, but one of them appeared to show the same lot marked 78. Another plat, not recorded, did show the lot, and evidence showed that for more than 25 years the lot had been held, taxed, recognized, known, and dealt with as lot 77. Held, that the deed was sufficient; that the portion of the description referring to the registry might be rejected, and it was competent to identify the property by parol evidence, and an action for breach of covenant of seizin contained in such deed, based on the discrepancy could not be maintained. Materials for judgment must appear on the record.

Error from Livingston.

J.C. Shields and M.V. Montgomery, for plaintiff in error.

L.S Montague, for defendant in error.

GRAVES J.

Wiley as assignee of the right of action, sued for an alleged breach of the covenant of seizin contained in a deed given by Loveley to one Charles M. Sheldon September 4, 1877. The cause was tried without a jury and the circuit judge found for the defendant. The deed set forth the property as being "all that certain piece or parcel of land lying and being in the village of Fowlerville, county of Livingston and state of Michigan, and more particularly known and described as follows, to-wit: village lot number seventy-seven (77) of the original plat of the village of Fowlerville, as duly laid out, platted, and recorded in the office of the register of deeds for said county of Livingston."

The first plat of the village and which is of record, only designates 29 lots and they are marked from 1 to 29. It therefore contains no lot numbered 77. Another plat is found in the record but it seems not to have been so executed as to entitle it to be recorded. This plat appears to have contained the lot under the designation of lot 77, but the register in transcribing it marked it by mistake as 78 and hence his copy represents two adjoining lots as respectively 78. It therefore appears that the record of plats discloses no lot numbered 77, and on the strength of this fact the action is prosecuted. The theory is that as the lawful record contains no lot 77 the property the defendant assumed to convey never had any existence. But it is only necessary to glance at the further facts in the record to see that this view is wholly untenable. The case shows that another plat which has not been recorded does contain this lot, and that for more than 25 years the specific piece of ground has been held, taxed, recognized, known and dealt with as lot 77.

The grant was not impaired by the omission to record the plat and it was competent to identify the parcel by parol evidence. Johnson v. Scott, 11 Mich. 232; Noonan v. Lee, 2 Black, 499. It is often necessary to resort to such evidence for the purpose of applying the deed to the subject-matter. That part of the description which speaks of the registry of the plat, and is found incorrect, may be rejected without any detriment. Johnson v. Scott, supra; Slater v. Breese, 36 Mich. 77; Jackson v. Clark, 7 John. 217; Eggleston v. Bradford, 10 Ohio, 312; Noonan v. Lee, supra; Butler v. Trustees First Presb. Church of Minneapolis, 7 N.W.REP. 363, 2 Minn. 155; Doe ex dem. Smith v. Galloway, 5 Barn. & Ad. 43; Doe ex dem. Roberts v. Parry, 13 M. & W. 356. Enough is left to satisfy all legal requirements. Goodenow v. Curtis, 18 Mich. 298; Sargent v. Adams, 3 Gray, 72; Gerrish v. Tome, Id. 82; Woods v. Saivin, 4 Gray, 322; Doe ex dem. Roberts v. Parry, supra; Jones v. Smith, 73 N.Y. 205; Schlief v. Hart, 29 Ohio St. 150.

The description was irregular but there was no lack of subject-matter. Nothing was required which an interpretation and application according to the rules of law would not supply. But another view is urged. It is contended that defendant's grantor derived title through an execution sale against one Tucker and that this sale was void on the ground that the...