49 Mich. 73 | Mich. | 1882
The circuit court decreed in complainant’s favor and the defendant appealed. It is necessary first of all to see upon what basis relief is asked ; because the court is confined to the case alleged. There is no doubt in regard to the head of jurisdiction to which the bill must be assigned. It is referable and referable only to the remedial equity for annulling proceedings to prevent them from working future mischief. The phraseology is in some parts vague and nearly if not quite equivocal, and were the complainant trying to profit by the obscurity of his statements he would be met by the familiar rule which requires a pleading to be construed most strongly against the pleader. But the sense in which the bill is justly to be understood is not a matter about which the court is in any doubt. The legit
Assuming that the scheme of the bill is coherent and its allegations consistent on this, the only theory admissible, the substance is that on February 18, 1878, William Booth, the complainant’s-father, owned the “ west seventeen feet ” of a certain lot number six together with an adjoining strip one and a half feet wide, and that day sold and conveyed the premises to complainant for $4000 ; that the description in the deed was not written plainly, and the-register of deeds in copying it into the records made a mistake, and instead of writing the words “ west seventeen-feet,” wrote “west seventeenth part/” that defendant on the fourth of April, 1879, sued the grantor, complainant’s father, and in August recovered a judgment against him for $1405.31, and in December following took out an execution, which the sheriff on the twentieth of January, 1880, levied on all the right, title, and interest of said grantor in all the west seventeen feet of said lot six, except the “ west seventeenth partthat shortly after the levy complainant notified defendant of his ownership of all the west seventeen feet of said lot six, and that defendant. must not sell any portion of the same; that complainant was not aware of any mistake in the record until after the levy, and on finding out about it, it was deemed best to have the writing of the words in question made plainer, and accordingly complainant procured the scrivener who originally drew the deed,
"Who, if any one, held possession after complainant’s alleged purchase is not suggested. The'bill is silent on the subject, and there is no charge or intimation in it that defendant had any notice that complainant had or claimed any interest in the premises levied on until some time after the levy.
From the scheme of the bill it is quite apparent that it is made a ruling question whether the deed from William Booth actually described the whole west seventeen feet as claimed by complainant, or only the west seventeenth part as claimed in the answer. In the one case there would be no ostensible conflict between the deed and the levy, while in the other case there would be and the equities would vary with the facts. That the deed really described the whole west seventeen feet was made a central fact in complainant’s case and he was bound to prove it. No foundation was laid for asking relief on any hypothesis not containing this ingredient, and no remedy is to be thought of which depends on looking at the. controversy under an aspect which is foreign to the case pleaded, nor can the court press the application of rules which have no relevancy except through unfounded assumptions. Had complainant acted on the theory that the fault lay in a mistake in the deed, and that his purchase nevertheless gave him an equitable title superior to any right of the defendant; and had he carried out such theory in bringing forward his case and in setting it forth on the record, then whatever the final result, the contention would
On full consideration of the record, it is concluded that, .according to the clear preponderance of evidence, the deed from William Booth to complainant described only the west seventeenth part of lot six, and that the suit brought by the bill failed therefore on its own principles. The case established by the evidence is fundamentally unlike, the case averred by complainant.
The decree should be reversed with costs and the bill dismissed.