Слике страница
PDF
ePub

ment with Seymour, in which it was re- rec'd; contents duly noted. In reply will

citel that Ort man did, on the 7th of De- say that after consulting Mr. Butler I came

cember. 1846, sell to ("happell und Smith all to the following conclusion: If you will

the pine and ash timber on the lands de- give me R. A. Seymour's notes, indorsed

scribed in that contract, and that the note by yourself, running with interest 7 per

of $9.333, maturing June 7, 1988, given by cent. P. An. from August 19th, (the date

them, was unpaid, and reciting that Chap- you bought the timber from Chappell and

pell and Smith had sold to Seymour said Smith,) maturing January 15, next, for $2,-

pine and ash timber, and he had assumed | 333, and maturing on or before June 1st,

the payment of the note, with interest; next, $7,000, I shall execute bill of sale in

and therefore agreeing to accept payment | accordance with my contract with (hap-

from Seymour of the note and interest, in pell and Smith at once to you without fur-

a note made by Seymour payable to the ther security; and, as Mr. Butler consent-

order of M. Engelmann, and indorsed by ed, as I said, will put his deed to me for

him to Ortman, payable on or before June the land upon the county of Lake record

7, 1X8x, and the interest from December 7, | at once.
77 at once. Please remit these notes to Mr.

1887, to that date. On the delivery of the Butler direct, and I will attend to the bal-
new note of Seymour, and payment of in- ance, if satisfactory to yourself and agree-
terent, Ortman was to cancel and give up able to Mr. Seymour. Thanking you for
the Chappell and Smith note; and it was your prompt reply, I remain, Yours, very
further recited that Butler held the Chap- truly, Chas. L. ORTMAN.”
pell and Smith note, as well as the title to Upon the margin below appears the fol-
the land, as collateral security, and had lowing:
agreed to reconvey the land upon payment "Detroit, Sept. 14, 1887. I am willing to
of $7.000, and to accept the Seymour note, accept the within described notes in place
indorned by Engelmann, in the place of the of the security I now hold. E. H. BUT-
Chappell and Smith note, which was to be LER.
delivered up and canceled, and it was there- On October 1st, 1887, Mr. Ortman wrote
fore agreed that the Chappell and Smith to Mr. Engelmann as follows:
contract should stand, and be in full force "Detroit, Mich., Oct. 1, 1887. M. Engel-
and effect in all its provisions and cove- mann, Esq., Manistee, Mich.-Dear Sir:
nants, until the aforesaid note of said Sey- Your favor of 27th ult. came duly to hand.
mour and Engelmann, with interest there- In accordance with your request, I incloso
on, should be fully paid and satisfied, and you herewith bill of sale of the pine and
the agreement was made a part of the con- ash timber, on lands in T. 20 N., R. 11 W.;
tract. This contract was, on the 14th day also my agreement to extend the period
of September, 1887, assigned by Seymour of cutting and removing the said timber
to Engelmann. On September 22d a formal therefrom to Jan. ist, 1891. Plense to no-
assignment of the contract of December 6, tify me by mail of your acceptance of the
1886, was made by Chappell and Smith, bill of sale and the agreement for cutting
and others who had become interested timber, with conditions and provisions
with them, to Seymour; and on Septem- therein mentioned; also, if these papers
ber 24, 18N7, Seymour assigned his interest are satisfactory, please forward to me tho
in the contract to Engelmann.

assigned contract which you hold from
It is proper now to call attention to cer- Chappell and Smith. I have this day for-

tain correspondence appearing in the rec-warded for record deed from E. E. Butler

ord. The first letter is dated September and wife to me for the lands in T. 20 N., R.

10, 1887, and is written from Detroit by | 11 W. Your notes dated Aug. 19th, 1887,-

Mr. Ortman to Mr. Seymour at Manistee. one for $2,333, due Jan. 15th, 1888, and one

This letter refers to the exchange of the for $7,000, due June 1st, 1888,- were re-

Seymour-Engelmann note for the Chap- ceived by Mr. Butler all right. Very re-

pell and Smith note, then in the hands of spectfully yours, CHAs. L. ORTMAN.

Mr. Butler. The next letter bears the same And Mr. Butler also wrote to Mr. Engel-

date, and is written by Ortman at Detroit mann on October 1, 1887, saying: "I have

to Engelmann at Manistee. In this he says quitclaimed the land to Mr. Ortman. He

that he forwarded to R. A. Seymour the forwards the deed for record. Also sends

contract for timber purchased by him from you bill of sale of the timber and agree-

Chappell and Smith, refers to Seymour's ment to extend time for cutting. I inclose

doubts relative to the title, and explains herewith the note of R. A. Seymour, $9,333,

the situation of the title fully to Mr. Engel- indorsed by you. Resp. E. H. BUTLER.”

mann. On September 13, 1867, Mr. Engel- The inclosures referred to in the letter of

mann writes to Mr. Ortman, acknowledge Mr. Ortman to Mr. Engelmann were as fol-

ing the receipt of his favor of the 10th, and lows:

informs him that he has bought the timber "Know all men by these presents, that I,

of Mr. Seymour, and that he looks to him Chas. L. Ortman, of the city of Detroit, in

for the title. He then proceeds: "But I the county of Wayne and state of Mich-

will say, according to your letter, it seems igan, of the first part, for and in consider-

you only owe $7,000 to Mr. Butler, and, if ation of the sum of fourteen thousand

you wish, I will do this.--namely, I will ($14.000) dollars, lawful money of the

arrange with you for the $2,333, if Mr. But- United States, to me paid by M. Engel-

ler is satisfied, and pay the balance on or mann, of Manistee, Manistee county, Mich-

before June 1st, providing I can cut the tim- igan, of the second part, the receipt where-

ber. If this helps you, let me know, and of Is hereby acknowledged, have bargained

will do what I can for you." On Septem- and sold, and by these presents do grant

ber 14, 1887. Mr. Ortman replies as follows: and convey, unto the said party of the sec-

"Hon. M Englemann, Manistee, Mich.- ond part, his executors, administrators, or

Dear Sir: Your kind favor of the 13th inst. | assigns, all the pine and ash timber grow.

ing, standing, and lying upon those certain | mann the period for cutting and removing pieces or parcels of land situate in the said timber for one year longer; that is to county of Lake and state of Michigan, and say, to the first day of January, A. D. 1891. described as follows, to-wit: In township CHAS. L. ORTMAN. twenty (20) north, of range eleven (11) In making out the above bill of sale Mr. west, the east half of north-east quarter, Ortman used an ordinary blank form, but (Ey of N. E. 14.) the north-west quarter of the sentence appearing in italics was innorth-east quarter, (N. W. 14 of N. E. 14,) | terlined with ink. I mention this because the north-east quarter of north-west quar- it was regarded as important by petitionter, (N. E. 14 of N. W. 14,) the south-east er's counsel upon the argument. The oral quarter of south-west quarter, (S. E.44 of S. testimony introduced to vary or explain W.14,) and the south-west quarter of south- the written evidence, or to show the ineast quarter, (S. W. 14 of S. E. 14,) and the tention of the parties, is excluded from our east half of south-east quarter,) E. 12 of S. consideration as being incompetent. We E. 14,) of section sixteen, (16,) and the south- think there is enough upon the face of the west quarter of north-east quarter (S. W. papers, taken in connection with the cor4 of N.E. 14,) of section twenty-eight (28.) respondence, to dispose of the question This instrument is given in fulfillment of a without resort to oral testimony. certain contract, made and executed by At the time the bill of sale was executed, the aforesaid Chas. L. Ortman, of date De- Engelmann owned all of the interest in the cember 7th, 1886, agreeing to convey the pine and ash timber which Ortman had aforesaid timber to Eugene Chappell, of conveyed by his contract to Chappell and East Saginaw, Mich., and D. J. Smith, of Smith, and Ortman had been informed Saginaw City, Mich., which said contract that he was such owner. He held Seyhas been duly assigned by said Chappell & mour's note, indorsed by Engelmann, for Smith to one R. A. Seymour, and by said $9,333, payable on or before June 7, 1888, Seymour to the aforesaid M. Engelmann, which he had placed with Butler as colto have and to hold the same unto the said lateral security. There was nothing in the party of the second part, his executors, ad- contract which prevented Engelmann from ministrators, and assigns, forever. And cutting timber, but, if he did cut, the title the said party of the first part, for himself, to the severed timber would remain in Orthis heirs, executors, and administrators, man, and he would only be adding value does covenant and agree to and with the to Ortman's property by so doing, withsaid party of the second part, his execu- out any right to dispose of the same untors, administrators, and assigns, to war- less Ortman consented to the sale. The rant and defend the sale of said property, contract effectually hampered any operagoods, and chattels hereby made, unto tions looking towards the conversion of the said party of the second part, his execu- the timber into money. It prevented the tors, administrators, and assigns, against sale of the timber by Engelmann. He all and every person or persons whatsoever, could make full payment at any time, and except as to the conditions and provisions thus become invested with the legal title; of the aforesaid contract. In witness but nothing short of full payment would whereof, I have hereunto set my hand and do so. Ortman had written Engelmann, seal this thirtieth day of September, one explaining his situation, and of the title; thousand eight hundred and eighty-seven. that he had owed the bank $15,000, and Chas. L. ORTMAN. [L. 8.] Signed, sealed, had placed the title of the land and the and delivered in presence of RoswELL HAR- note for $9,333, which he had received from RIS, ALFRED M. LOUD.”

Chappell and Smith, and later the substi“ Detroit, Mich., Sept. 30th, 1887. I do tuted note of Seymour, indorsed by Engelhereby agree with M. Engelmann, of Man- mann, in Butler's hand as security that he iøtee, Mich., as follows, to-wit: That, had reduced the indebtedness to $7,000. whereas, I did, on the 7th day of Decem- Upon this information Engelmann offered ber, A. D. 1886, make an agreement with to pay him the balance on the $7,000, nameEugene Chappell, of East Saginaw, Mich., ly, $2,333, and pay the balance on or beand D. J. Smith, of Saginaw City, Mich., fore June 1, 1888, “providing he could cut to sell to them all the pine and ash timber the timber.” The meaning of this expresfrom certain lands in T. 20 N., R. 11 W. sion,“providing I can cut the timber," was which said contract was assigned by said perfectly clear to Mr. Ortman. Both parChappell and Smith to one R. A. Seymour, ties knew it did not refer to what Engeland by said Seymour to the aforesaid M. man had a right to do then under the conEngelmann; and, whereas, the time for tract. Mr. Ortman understood that En

a , limited in said contract to three years so as to make the cutting of the timber of from January 1st, 1887, that is to say,

to value to him. Consequentiy, on receipt of January 1st, 1890; and, whereas, said Eu- this proposition, he wrote the letter of gelmann has requested that the period for September 14, 1887, in which he makes the cutting and removing said timber be ex- proposition that if Engelmann will give tended for one year longer, to-wit, to Jan- him the notes specified he will execute a uary 1st, 1891: Now, therefore, if said En- bill of sale in accordance with his contract gelmann shall well and truly pay, in due with Chappell and Smith at once to Engelseason, all the taxes levied or assessed mann, without further security, and Butupon the lands mentioned in said contract ler would reconvey the land to him. The with said Chappell and Smith, for the ad- object of all this was to convey the title ditional year hereby granted, that is to say, of the timber to Engelmann. To carry for the year 1890, and in consideration of out this purpose, Butler reconveyed the such payment of taxes, and not otherwise, land, by deed dated the 30th of September, I do hereby agree to extend to said Engel- | 1887, to Ortman, and he on the same day,

V.45N.w.no.1-5

by bill of sale, con veyed the title of the CHAMPLIN, C. J. The law of this case timber to Engelmann. If the bill of sale was settled in 68 Mich. 312, 36 N. W. Rep. was not executed to convey the absolute 88. The testimony as to whether or not a title to the timber to Engelmann, it was contract was entered into beween the par. without point or purpose,-a mere idle ties, such as declared on in the declaration, cercigony.

was conflicting and directly antagonistic. It is claimed by petitioner's counsel that this testimony was submitted to the jury the words in Italies in the bill of sale, under proper instructions, and they have namely. “except as to the conditions and found in favor of the plaintiff. Their acprovisions of the aforesaid contract," tion does not come before us for review, if make the bill of sale subject to all of the there was any testimony to support their provisions of the contract, including that verdict. The record discloses that there which ways the title to the timber shall not was such testimony. We have examined pass to the purchasers until full payment. the errors assigned upon the rulings of the I do not agree with him. The exception, court in the admission of testimony, and whatever It may mean, is in the warranty find such rulings are free from error. clause, and not in the granting clause, of The only error assigned which requires the contract. The bill of sale is absolute comment is that which is based upon the in terms, and acknowledges the receipt right to recover damages under the testiof the full contract price as a considera-mony in the case. When the case was here tion. It further states that it is given in before, we said: “When a claim is made fulfillment of the contract of December 7, for damages arising from breach of conINNG, agreeing to convey the aforesaid tim- tract, and evidence is offered to show loss ber to ("happell and Smith; and in it Ort- of profits which might have been realized man agrees to warrant and defend thesale from a performance of the contract, the of the property thereby to Engelmann question to be determined is whether the against all persons whatsoever. If it was damages claimed are too conjectural, specthe intention, by the exception which then ulative, or contingent to form a safe basis follows, to retain in Ortman the title to for estimating the damages ;” and we the timber which, by the same instrument, there said that, in a case like this, " there is he conveyed, the exception would be re- no reason why the difference between the pugnant to the grant, and void. It can cost of performance and compensation not be construed to have the effect to nul- agreed upon should not be recovered as lify the sale of the timber, and of the vest- actual damages suffered by the aggrieved ing of the title in Engelmann.

party." Defendants' counsel claims that When the bill of yule was executed and the testimony is insufficient to form any delivered to Engelmann, the only provis. just basis for the jury to estimate the lund of the contract remaining in force plaintiff's damages. The jury having were those providing that the timber not found for the plaintiff, they must have taken off within the time limited should found that a contract was entered into revert and belong to Ortman, which time as claimed by the plaintiff. Briefly stated, was extended to 1891, and the fifth and it was an agreement that the defendants sixth clauses, not necessary to mention would furnish to the plaintiff, to be sa wed here. The bill of sale was not obtained upon a band-saw at her mill, 1,000,000 feet by fraud, and it is a valid instrument. By of pine saw-logs of large size, and to com1t Ortman voluntarily parted with his ti. mence the delivery of such logs at the mill tle to the timber, and had no lien or claim as soon as the plaintiff was ready to saw either upon the timber or upon the pro- | them, which was about the 10th or 15th of ceeds or avalls thereof. The decree ap- | May, and all to be delivered in the last pealed from is affirmed, with costs. The part of June or the first part of July; for other justices concurred.

which sa wing the defendants agreed to (80 Mich. 163)

pay the plaintiff $3 a thousand feet for LEONARD V. BEAUDRY et al.

merchantable and short lumber, and $2 a

thousand feet for culls. The testimony (Supreme Court of Michigan. April 11, 1890.)

showed that about 10 percent. of such logs CONTRACT-Loss or Prorits-DAMAGES. would run to culls. Had she been fur

In an action for loss of profits through nished the logs so that she could have perdefendants' breach of contract to furnish a stated formed her contract, she would have been quantity of logs to be sawed at plaintiff's mill, for entitled to receive for sawing 100,000 feet which plaintiff was to receive three dollars per of culls, at $2 per thousand, $200; and for dollars per thousand feet for culls, evidence as sawing 900,000 feet of merchantable and to the percentage of logs that would run to culls, short lumber at $3 per thousand, $2,700,as to the number of days it would have taken plain total, $2,900. There was testimony as to tif to saw the logs, and as to the daily expense of the capacity of the mill for sawing lumber, tho mill, furnishes suficient da'n to estimate varying from twenty to forty thousand plaintiff's damage without rosortiug to speculation feet per day, depending upon the size of or con jocture.

the logs; but the most of the witnesses Error to circuit court, Muskegon county : placed the capacity from twenty-five to ALBEUT DICKERMAN, Judge.

thirty thousand feet. There was testimony Action for brench of contract by Mary G. | tending to show that it would have taken Leonard against Charles Beaudry, Joseph from four to six weeks to saw the million B. Champagne, and Katherina Hertz. feet contracted for. We have no way of There was a judgment in plaintiff's favor, ascertaining whøt number of days the whereupon defendants took this writ. For jury agreed upon as the time it would have the facts, see 36 N. W. Rep. 88.

taken to do the sawing; but the testimony Bunker & Carpenter, for appellants. furnished them data from which they could Smith, Nims, Hoyt & Erwin, for appellee. fix the number of days with reasonahle

certainty. The testimony also tended to half of 23, Studiford plat, giving the boundshow that the daily expenses of operating aries and dimensions as 75x140 feet. This the mill in performing the work contracted deed was duly recorded. Gale, November for was $65. We think there was testimo- 14, 1862, conveyed to George Kronach lot ny upon which the jury could safely and 22, and the east half of lot 23, bounded justly estimate the damage without enter- | west by Stringleman, which deed was reing the field of speculation and conjecture. corded November 18 of the same year. When they fixed from the testimony the Stringleman and Kronach entered into the daily capacity of the mill, or the number of possession and occupation of the premises days required to perform the work, they deeded to them respectively. The premises could readily ascertain the difference be-conveyed to and occupied by Stringleman tween the cost of performance and the were fenced, which fences have occupied contract price therefor. There is no error substantially the same position since. of law in the record, and the judgment There were a house and barn and outbuildmust be affirmed.

ing upon the Stringleman premises. Rich

ard Stringleman died prior to 1872,-the MORSE and GRANT, JJ., concurred.

exact date does not appear; and December LONG, J., did not sit.

16, 1872, his widow and one heir joined in a

mortgage upon the premises. This was (80 Mich. 139)

released September 11, 1873. April 18, 1873, CONLIN V. MASECAR.

two of the heirs conveyed, by quitclaim (Supreme Court of Michigan. April 11, 1890.) deed, the premises to their mother, ElizaREFORMATION OF DEED-MISTAKE-EVIDENCE.

beth Stringleman. July 9, 1873, two other 1. In an action by the vendor to reform a deed

of the heirs executed a quitclaim deed to for mistake, the fact that it is made out in the their mother, Elizabeth Stringleman, and name of the purchaser's wife will not render in- therein described the premises as “Lots 23 competent parol evidence of the nature and extent and 24, Studiford's Plat.” On the same of his examination of the premises before making day, Elizabeth Stringleman executed a the bargain, though he was not authorized, in

mortgage to W. H. Lacey, describing the writing, to act for her. 2. The vendor, misled by descriptions in convey

premises as “Lots 23 and 24;” and also, ances from which he derived title, represented the

on the same day, she executed another premises to the purchaser, when he examined them, mortgage to Erastus H. Field, describing as two full lots, and the deed so described them, the premises mortgaged as “Lots 23 and when in fact they consisted of one and a half lots 21.” Prior to 1878, John B. Conlin, the only, under one fence. Held, a mutual mistake, complainant in this suit, purchased the entitling the vendor to a reformation of the deed,

two mortgages last described, and took notwithstanding his failure to search the records and discover his error.

assignments thereof. Mrs. Stringleman

also made another mortgage, covering in Appeal from circuit court, Monroe coun- the description two full lots, which was ty, in chancery; E. D. KINNE, Judge.

afterward discharged. On March 26, 1878, Action by John B. Conlin against Appa- Elizabeth Stringleman conveyed to Conlin, lonie Masecar for the reformation of a deed. by quitclaim deed, the preinises, describing There was a decree in complainant's favor, them in such deed as “Lots 23 and 24." and defendant appeals.

Mr. Conlin lived at White Pigeon, in St. 1. G. Humphrey, for appellant. G. M. Joseph county, and transacted his business Landon, for appellee.

at Monroe through his agent and attor

ney in fact, Edward R. Gilday. Neither CHAMPLIN, C. J. Complainant filed his Conlin nor Gilday had actual notice of the bill in the circuit court for the county of situation of the title, at this time, savo Monroe, in chancery, to correct a mistake what appeared from the description conin, and reform, a deed executed by him to tained in the two mortgages executed on defendant, dated May 23, 1879, conveying the 9th day of July, 1873, which Conlin had to her "all that certain piece of land situ- purchased. They had long known the ate in the city of Monroe, county of Mon- premises occupied by the Stringleman roe, and state of Michigan, known and de- family, embraced within the inclosure. In scribed as “Lots Number Twenty-Three the winter or spring of 1879, Mr. Gilday and Twenty-four (23 and 24) of the Studi- | proposed to sell the premises to Dr. A. J. ford Plat,' according to the recorded plat Masecar. Dr. Masecar had resided in Monthereof, with the buildings thereon.” The ,

roe but a short time, and had formed an deeds contained covenants of seisin and intimate acquaintance with Mr. Gilday; against incumbrances, and a warranty to and they, as well as their families, were defend against all lawful claims. The bill on the most friendly terms. At the sugalso prayed a perpetual injunction restrain- gestion of Mr. Gilday, they went to view ing defendant from further prosecuting a the premises. The doctor examined ihe suit at law which she had brought against premises,-went through the lower part of him for breach of covenants in the deed, the house, and into the front and back which was commenced on the 6th day of part of the lot. Mr. Gilday told him the February, 1887; and the bill in this case premises consisted of two lots. There is a was filed April 4, 1887. The alleged mis- serious conflict of testimony as to scine take is in the description of the premises, things which are claimed by Mr. Gilday to and consists in conveying the whole of lot bave occurred upon that examination. 23, when it should have only conveyed the Mr. Gilday testifies that the question arnho west half of lot 23, and the whole of lot 24. as to the width of the premises, and that he By the Studiford plat, lots 23 and 24 have judging of the distance between the fences, each a frontage of 50 feet. In 1849, William said to the doctor that the lots could not P. Gale conveyed, by warranty deed, to be over 40-foot lots, as he did not think it Richard Stringleman, lot 24, and the west was over 80 feet between the fences; that the doctor thereupon went to the fence at mencement of the suit at law. Mr. Humthe south-east corner, and paced across phrey testifies that he wrote a letter to the front of the lot; and that he asked the Mr. Conlin notifying him of his want of doctor how much he made it, and he shook title to the east half of lot 23. The testihis head, and said, "I don't think it is quite mony as to mailing the letter was not defi. that much;" that he said to the doctor: nite, but depended upon the ordinary usage "I don't know whether it is that or not. and custom of mailing letters written by I don't know the width of the lots here. his firm. Mr. Conlin testifies he never re

. They are so described in the papers, and ceived it. It is not necessary to recite the that is all I know." This part of Gilday's testimony at large. testimony is positively and distinctly de- Counsel for defendant claims that the nied by the doctor. I do not consider this parol testimony showing what Dr. Magedisputed testimony of much importance. car said and did was incompetent, for the The doctor was then 40 years of age. He reason that he was not authorized in writhad had large experience in building houses, ing to act for his wife; that the deed is the -could tell the dimensions of the house ap- only written evidence of the sale and puron these premises; and it would seem, ir chase, and that cannot be reformed, unless that question was material to his pur- in accordance with some preceding agreechnse, that a man with such experience, ment in writing. I think, under the cirand with such ability to give dimensions, cumstances of this case, the testimony as would readily discern the difference be- to what preceded the writing of the deed tween the frontage of 75 and of 100 feet. was admissible. The doctor represented The price asked was $1,000. After viewing himself up to the time the deed was drawn, the premises, the doctor offered $900, which, and then he directed his wife's name to be after a time, was accepted. Mr. Gilday inserted. She stepped into his shoes at was about to prepare a deed, when the that point, and is in no better positior. doctor told him to niake the deed out in than he would be in had the deed run to his wife's name, and gave him her name to

him. insert in the deed. After it was drawn, it In order to determine whether a mistake was sent to White Pigeon for execution, has been made in describing the property and on its return Mrs. Masecar executed sold, it is essential to ascertain the intent her note and mortgage for a balance of of the parties--the one in selling, and the the purchase money: the description in other in buying--as to the subject-matter the mortgage following that of the deed, of the sale. If the deed expresses that inand describing the premises as lots 23 and tent, then there is no mistake which can 24. Mrs. Ma secar and the doctor went in- be relieved from in equity. The premises to possession of the premises, and on No- which the complainant, through his agent, vember 15, 1883, executed a mortgage upon Gilday, offered for sale, was a parcel of them to Mary Leonard, describing them as land inclosed by fences. The seller and the "Lote 23 and 24." It appears that the two purchaser were upon the ground, and the mortgages which Coplin had purchased, purchaser saw all there was offered for given by Mrs. Stringleman, had not been sale. It was described to him as two lots. discharged of record; Mr. Gilday consider- It would be idle, as well as preposterous, ing that they had merged in the deed from to claim that as the parties stood there, Mrs. Stringlemap to Conlin. Dr. Masecar | upon the ground, looking at the inclosure, testifies that he found, upon in restigation, the one intended to sell, or the other to that the mortgages had not been dis- | buy, or thought he was buying, a strip 25 charged, and also that somebody had a feet in width beyond the east fence, then deed to the east hall of lot 23; that he then in the occupation of Mr. Kronach. It apwent to Mr. Gilday, and requested him to pears plainly to me that not only was discharge those mortgages, and after some there a mistake in the description of the conversa tlun he promised to discharge property in the deed, but that the mistake them; that he asked him at that time how was mutual. The defendant has got the It was that he had sold Mrs. Masecar two identical premises she bought, and all she lots, when half of one of those lots was bargained for. The public records were deeded to romebody else, and that he constructive notice alike to both parties, "asked if he knew that lot was sold. He that the legal title of the east half of lot 23 said he did. He said he sold Mrs. Masecar was in Kronach. The mistake contained just exactly what Mr. ('onlin's interest in the description of the mortgages exewas in that property." Mr. Gilday denies cuted by Mr. Stringleman in 1873 led Mr. that part of this conversation relating to Gilday to believe that the premises were the title of the east half of lot 23. It ap- correctly described as "Lots 23 and 24." pears by the record that Mr. Gilday dis- This was such a mistake as entitles a party charged the two mortgages mentioned on tu relief in equity. I do not think that the the 6th day of November, 1883. At this fact that he did not search the record back, time, according to Dr. Masecar's testi. when he would have discovered the error, mony, he knew that Mrs. Masecar had no was such negligence as precludes relief, untitle to the east hall of lot 23; and yet it der the circumstances shown in the testiappears by the record that on the 15th day mony of November, or nine days later, she mort- The objection that parol testimony was gaged both of the lots, regardless of want not admissible to show the mistake is not of title to the east half of 23, to Mary Leon- well taken. The principles governing the ard. The only importance this testimony introduction of parol evidence to reform has in its bearing upon complainant's de written instruments are so well and fully lay to bring suit. Both Mr. Conlin and stated in Pom. Eq.

Jur. $$ 857-859, 864-867,

88 Mr. Gilday testify that they were not that we need not incumber this opinion by aware of the mistake until after the com- stating them here. We think the decree of

« ПретходнаНастави »