| Mich. | Oct 13, 1874
It will be seen by the bill and the demurrer, that the first and one of the main questions in the case, is one of boundary, or what land was conveyed by the description in the deed from complainant to Patchin, as well as by that in the deed from Murphy and wife to Baldwin, and, if the former conveyed all the land to the line of HowelFs land, whether the latter also conveyed to the same line. It is obvious that this question of boundary, or what lands were-conveyed, might be more or less affected by oral evidence outside of the deed, the situation of the land, its previous-chain of title, and many other circumstances difficult to be set forth in detail in a bill; and in considering the question upon demurrer complainant must have the benefit of all such extrinsic evidence as might have been introduced in support of his theory of the question, under the case made by the bill.
So far as relates to the deed to Patchin, and all the subsequent conveyances down to Murphy, repeating the same description of the premises, the question of boundary, or what was intended to be conveyed, considered as one of interpretation or construction, and without reference to the practical location made upon the ground by the parties, the location of division fence, or any acts amounting to an.
Assuming, for the present, that Murphy’s deed to Baldwin, with that from Baldwin to Merrill, did not of itself convey the whole land up to Howell’s line, or that if it might otherwise have done so, yet by the acts of Baldwin or his grantor, a practical location had been made which would bind him to a line short of that, and where complainant claims it ought to be; still, upon the case made by the bill, the entire paper and recorded title, to tbe parcel in dispute, in other words, the legal title, would appear clearly to be vested in Murphy, whose deed, as well as Albee’s, described the lands in the very words of complainant’s deed to Patchin; and the only right which the complainant, by his own showing, could have in the disputed parcel, would be a mere equity, growing out of a mistake in the description of the land in complainant’s deed to Patchin, as well as in Patchin’s to Albee, and Albee’s and Patchin’s deeds to Murphy. And for the purpose of establishing this mistake, the appropriate, and it seems to me the only true remedy of complainant, would be by bill to reform the deed by a correction of the mistake. And until it is corrected by the appropriate decree, or until Murphy either releases to complainant, or upon a bill filed, disclaims having acquired any interest to the disputed tract, complainant does not put himself in a position which entitles
Now, so far as the apparent legal title of Murphy might be affected by extrinsic evidence of a mistake, or by the acts in pais of him or his grantors, in making an actual location, or otherwise creating an equitable estoppel, so as to confine the effect of the deed short of Howell’s line, Patchin and Murphy, at least, whose acts are relied upon, are entitled to be heard before their right can be determined upon. No decree affecting their rights, or based upon a denial or adverse determination of their rights, could properly be made in this suit, to which they are not parties. This suit, between the present parties, does not, therefore, determine the controversy.
It seems to me, therefore, that, under the present bill, we can hardly, with propriety, determine the question of boundary, as presented by Murphy’s deed to Baldwin, or Baldwin’s to Merrill, or .whether the description in those deeds includes the land in question, nor how far the effect of these deeds of themselves might be modified or controlled by any acts in pais of Murphy, Baldwin, or Merrill.
It may, for the purposes of the present Case, be admitted that the description in Murphy’s and Baldwin’s deeds do not so clearly cover the land in dispute as the deed of complainant to Patchin, and the others, down to Murphy; and that when the distance to the land of a third person is given, the line of the land of such third person would not necessarily control the distance given, as in the case of a known, fixed and tangible, designated monument, like a lake, or river, a ledge of rocks, or even a specified tree, — that this might, as I am inclined to think it would, depend much upon the question whether the line of the land referred to had become so certain and fixed by fences, exclusive occupancy, or visible monuments, in other words, so notorious, as to raise a fair probability that the parties relied upon such line as more certainly right than the dis
As to the deeds, however, of Murphy to Baldwin, and Baldwin to Merrill, the theory of the complainant’s case, as made by the bill, is not necessarily that -there is any mistake in the description which needs correction, as the bill would be equally sustainable if the evidence should show, in connection with the deed, that the lands in dispute were not included.
As to the objection made by the defendants that the bill does not show that the complainant' was in possession at the bringing of the bill, — it is admitted that the bill contains an express allegation of such possession; but it is insisted that, as the bill shows in other portions of it that complainant never, after conveying to Patchin, knew that he had any land left there, until shortly before the bill was filed, this is utterly contradictory of the complainant’s continued possession alleged in the bill, or of his possession at the commenciement of the suit. I do not think the one allegation is so utterly repugnant to the other that no evidence could be admissible to show that both were true. Though, for instance, the complainant was ignorant of his ownership until about the time suit was brought, and therefore was not personally in possession, some other person may have all along been in possession intending to hold for him, whose acts he would have a right to adopt; and he might show also that he had taken peaceable possession personally afterwards, and held it when the suit was commenced.
I think the bill is defective for want of parties as above explained, and if complainant should amend, it may be well to consider whether, owing to responsibility over upon the
It may be proper also to remark here, though not noticed by counsel, that the true location of the line of Bobert Howell’s land is one of the necessary facts of the complainant’s case, and that there is apparently such a repugnacy in the description of the tracts conveyed by complainant to Bobert Howell as to make it difficult, if not impossible, to locate the land correctly, from the description given in the bill.
The decree of the court below must be affirmed, with costs.