139 Iowa 32 | Iowa | 1908
Appellee is the owner of a' certain lot in the city of Des Moines, except the east thirty-six feet thereof, and appellant is the owner of the east thirty-six feet of said lot. Each acquired owenrship of his property by conveyance from one L. M. Mann, who at one time owned the entire lot. The controversy is over the boundary or division line between these two parcels of land. There is a barn upon defendant’s property, and a fence between that owned by the respective parties to this action, which, if found to be on the true line, gives defendant a strip thirty-six and thirty-three hundredths feet at one end and forty-two feet at
L. M. Mann was at one time the owner of the entire lot. In the year 1893 Mann contracted to sell the west part of the lot to plaintiff and her husband, and in the year 1904 he made a deed to plaintiff of all of the lot, except the east thirty-six feet. In 1899 Mann made a contract with defendant to sell her the east thirty-six feet of the lot, and thereafter made her a deed of the property. It also appears that in the year 1894 Mann made a contract to sell all of the lot, except the west thirty feet thereof, to one Stivers, and in that contract he described the property as being thirty-four feet in width at one end and forty-two and six-tenths feet at the other, although he was told that the property was thirty-six and two-tenths feet wide in front and forty-two and some tenths in the rear. Plaintiff went into possession under her contract with Mann in the year 1893, and Stivers went into possession of the property he had purchased in the year 1894. Plaintiff’s husband, who was one of the purchasers under the contract from Mánn, and who was in possession of the premises contracted for by them, helped Stiv-ers measure off the property claimed by each, and together they bought the material for the fence and'erected- it upon
Stivers surrendered his contract with Mann after living upon the property for three or four years, and Mann sold to defendant in November of the year 1899, reserving possession until February 1, 1900. When defendant purchased from Mann, she was informed that the lot was “36 feet in front and 42.6 in the rear.” Defendant then asked if this would ever make any trouble, and was told’that it would not. Although her deed and contract conveyed but the east thirty-six feet, defendant understood that she was to have all of the. property up to the fence and the west side of the barn. It is argued for appellee that as Mann at all times owned the property, subject to the outstanding contracts, the doctrine of acquiescence does not obtain, for the reason that he could not agree with himself as to the boundary line. In some respects this is true; but he could as owner lay off his
If it satisfactorily appeared that after the making of the contract with plaintiff, and after Stivers surrendered his contract, Mann intended to malee another division of the lot, we would have a'very different question. But it does not appear that plaintiff, in taking her deed, was getting anything more than her contract called for, nor does it appear that defendant was told she was to get but the east thirty-six feet. On the contrary, nothing seems to have been said to plaintiff about the matter, and defendant was assured that she was getting property to the line marked by the bam and fence. Plaintiff is also estopped from claiming the property in dispute, for the reason that through her agent she agreed upon the line, saw the barn erected with reference thereto,
The decree should have been for the defendant, and the case must be remanded, in order that such an one, not inconsistent with the issues tendered, may be rendered.— Reversed and remanded.