60 Neb. 364 | Neb. | 1900
This suit was instituted by the Evangelical Lutheran Trinity Church of Clatonia precinct, Gage county, to enjoin Henry Pohlman and Henry Holsing from entering or trespassing upon certain real estate alleged to belong
Plaintiff acquired title to the tract by ‘deed of general warranty from the prior owner. It thereafter erected a church building and parsonage on the premises at the cost of several hundred dollars, inclosed the same with a fence, and used and occupied the premises for religious purposes. The defendants assert that the grantor in the deed to plaintiff only intended to convey five acres of land, while a larger tract was actually described in the conveyance. They also claim title to the portion of the premises in excess of five acres by reason of adverse occupany for more than ten years. The testimony, in many respects, was conflicting, in which case the rule, is that a finding based thereon will not be disturbed on review.
It is argued that injunction will not lie, as plaintiff liad a complete remedy at law to recover damages. It was shown that defendants tore down and destroyed the fence, and threatened to continue doing so as often as plaintiff should restore the same. This threatened continued trespass was sufficient to give a court of equity cognizance of the cause, though the defendants may not be insolvent. Shaffer v. Stull, 32 Nebr., 94.
The church claims under a deed from one Paul Bartos, a former owner of the property, in which conveyance the description was by metes and bounds as follows: “Beginning at the southeast corner of the southeast quarter of section thirty (30), town six (6) N., range five (5) east in Gage county thence north four hundred and twenty- - five (425) feet thence west one thousand and fifty (1050) feet thence south four hundred and twenty-five (425) feet to the south line of said section, thence along said line one thousand and fifty (1050) feet to the place of beginning, containing five (5) acres more or less.” Subsequently Bartos conveyed to Frederic A. Pohlman said southeast quarter of section 30, with the following reser
The defendants claim title through the conveyance from Bartos to Pohlman, and from the latter to Lohmeyer, as well as adverse occupancy for the statutory period of ten years. It will be observed that in these transfers of title the deeds expressly excepted and reserved title to the premises described in the deed, under and through which the plaintiff below claims title. It is
“1. In an action between other's than the original parties to a deed, the intention of the parties to the conveyance cannot be inquired into for the purpose of ascertaining the land sought to be conveyed, if the calls in the deed refer to fixed monuments or points.
“2. Where there is a call in a deed, which was in fact not intended by the parties, and is unambiguous, the intention of the parties cannot be made to take the place of the call, neither is parol proof competent to locate the land.”
The conclusion is, therefore, irresistible that the church acquired title to all the land embraced in the specific description contained in the deed from Bartos to it. The evidence is sufficient to justify the finding that the defendants did not acquire title to the disputed tract by
The decree is right and is
Affirmed.