111 Mich. 466 | Mich. | 1897
The accompanying plat will show the situation of the premises involved in this cause. On January 21, 1891, Herbert W. Heath was the owner of lot 2,
which was 100 feet long east and west, fronting Eleventh street, and he resided in a dwelling upon said lot. On January 24th he sold the defendants a portion of this lot, the deed conveying all of said lot except a strip 35 feet wide from the east end of said lot. The west line of a strip 35 feet wide taken from the east end of said lot runs through a brick cistern just east of the dwelling referred to, which cistern was fed from the roof of said dwelling, and was used by Heath while he occupied it, and by the defendants after their purchase. Soon after their pur-, chase, the defendants moved into said house, and have occupied it continuously since. They erected steps which extended 20 inches beyond the line referred to, and were in the habit of crossing to a walk subsequently built upon
The circuit court found that, during the negotiations for the purchase by defendants, Heath and Mr. Baldwin made some measurements, and he was told that the east boundary of his lot came to the east side of the cistern top or cover, which is about 15 inches farther east than the most eastern part of the steps, and that, before the deed was drawn, it was agreed that the east boundary of the parcel was the east side of the top of the cistern. It was found as a further fact that Heath acquiesced in the occupancy by the defendants up to such line, while he remained the owner of the premises, which occupancy was evidenced by the use of the steps and cistern. There can be no question that the land in dispute is not within the description contained in defendants’ deed, which description is in no sense uncertain. There is nothing in the deed which could give rise to any controversy, and the defendants’ claim of title to the disputed land rests entirely on an oral agreement to convey to the east side of the cistern cover, and occupancy such as it was. Being destitute of written title, the defendants’ claim rests upon the proposition that the east line of the west 65 feet of lot 2 is not 65 feet east of the west line of the lot, but that it is about 66 feet 8 inches east of said
Counsel cite several cases; but the cases limit the rule to mutual agreements to settle disputed boundaries, and they do not apply unless the adjustment is accompanied or followed by the existence or erection of distinctive landmarks, showing the bounds of the respective parcels, and exclusive occupancy in accordance therewith. In Smith v. Hamilton, 20 Mich. 438 (4 Am. Rep. 398), it is said that “where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds.” The case of Croninv. Gore, 38 Mich. 381, clearly recognizes this rule. In that case Chief Justice Campbell, speaking for a unanimous court,- said:
‘ ‘ In each one of these cases the line of division between the adjoining owners was distinctly fixed on the grounds under deliberate mutual action, had for the express purpose of fixing it. Neither of them rested on mere acquiescence. The parties were acting with particular reference to determining their respective lines, and for that specific purpose. And it was held that, where such deliberate dealings were had between the parties, the case rested on grounds similar to those which authorize the specific performance of parol agreements actually executed. It. was held, also, that unless the transaction
There is no room for that contention here. There has been no attempt to adjust existing differences, but, if defendants are to be believed, a mistake or fraud has occurred or been committed, whereby they have not received a conveyance of the full quantity of land bargained for. Burns v. Martin, 45 Mich. 22. See, also, Terry v. Chandler, 16 N. Y. 354 (69 Am. Dec. 707).
' The judgment is reversed, and, under the finding of facts, we feel warranted in directing the circuit court to enter a judgment in favor of the plaintiffs in accordance with the allegations of their declaration. Ordered accordingly.