124 Mich. 205 | Mich. | 1900
The bill in this case was filed to correct a mistake in a party-wall agreement, and to restrain the further prosecution of an ejectment suit brought against the grantee of complainants. The testimony on the hearing disclosed the following facts: Prior and up to the fall of 1893 the complainants (who are husband and wife) and the defendant owned adjoining parcels of land on the south side of East Main street in the city of Jackson. The complainants’ premises lay just east of the defendant’s. By the descriptions in their respective deeds the complainants’ lot had a frontage on Main street of 18 feet, and the defendant’s of 15 feet. The front portions of both parcels were covered by old wooden buildings, which directly adjoined each other, and had been occupied for business purposes for more than 20 years. During all of that period, each party and their grantors had possessed and occupied these buildings as their property without question or dispute as to the division line, and as though the line between these buildings was the true division line between their respective premises. In the fall of 1893 the complainants determined to join with one Neesley, who owned the lot next east of theirs, in building a modern brick building covering substantially both of their lots, and having a united frontage on Main street of about 46 feet. They tore down the old wooden buildings on the premises, and began excavating for the foundation walls.
The defendant resided at Rouse’s Point, N. Y., and left his property in general charge of his nephew, Frank Heaton, who resided in Jackson, and was defendant’s agent for the purpose of collecting the rents, making repairs, and overseeing this with defendant’s other real
The testimony of the county surveyor establishes the fact that the division line as fixed by actual occupancy for more than the statutory period was still less favorable to the defendant than the parol agreement and actual location of the wall, and that by the parol agreement the defendant actually gained 3-J inches, and that, if the written contract is to stand, he will gain about 13|- inches. We are also convinced that the complainants and defendant’s agent understood, at the time of the execution of the written agreement, that it did not fix the boundary line different than it had been fixed by the oral agreement and actual location of the wall.
At the close of the testimony, complainants were permitted to amend their bill by adding an alternative prayer as follows:
“Or that the defendant be perpetually enjoined from maintaining the said ejectment suit, and that he be required to pay to complainants one-half the cost of such wall within a reasonable time, and that the center of such wall be declared to be the boundary line between the lands of said defendant and said William Breitmayer, and that the said written agreement be set aside and annulled.”
The circuit judge granted the relief prayed, and defendant appeals.
Defendant contends that by the amendment to the bill it was made multifarious. It is conceded that a bill may have a double aspect and an alternative prayer if the two prayers are not inconsistent, but it is claimed-that these prayers are inconsistent. We do not think
On the merits the equities are very clearly with the complainants. It is manifest that complainants did not intend to grant away the partition wall already constructed, nor did the agent of defendant understand that his principal was acquiring it.
It is contended that complainants are not entitled to relief, because they failed to ascertain the authority of defendant’s agent, which was in fact limited to the execution of the instrument as written. The complainants may have taken the risk of the agent’s authority, but in doing so they did not bind themselves to an undertaking to which they never intelligently assented, unless they are guilty of such culpable negligence as debars them, or are estopped by their conduct. We are satisfied that complainants should not be held barred by their negligence, inasmuch as no action by defendant with reference to the possession of this land has been induced by their laches. 2 Pom. Eq. Jur. § 856. Nor is there any element of estoppel. The defendant has parted with nothing on the strength of complainants’ mistake. Id. § 870. If the agreement were wholly canceled, the rights of the parties would be determined by their previous undisputed occu
The decree is sufficiently favorable to defendant, and is affirmed, with costs.
Viz.: Shields v. Barrow, 17 How. 130; Livingston v. Hayes, 43 Mich. 129 (5 N. W. 78); Schafberg v. Schafberg, 52 Mich. 429 (18 N. W. 202); Ogden v. Moore, 95 Mich. 290 (54 N. W. 899).