135 Iowa 359 | Iowa | 1907
The facts of the case are not in substantial dispute, and may be stated as follows: During the year 1873, Samuel Skaife, then the owner of the northwest quar
Plaintiff, as a witness on the trial, testified that down to the year 1900 — the time when a survey was made, as presently to he referred to — Buncombe Road had always been recognized as the true line separating the lots; 'that no claim to the contrary, or of right to any portion of the lands on the west side of the road had ever been asserted, either by his father or the heirs. While John Skaife, son of Samuel Skaife ■ — ■ at the time of the trial deceased • — ■ testified that he was present when the sale was made by his father to Jacques Pillard, and “ that the land that was sold was to be all the land on the east side of Buncombe Road; there was no question about where the line was between lots 1 and 2.” And George Salot, a witness for plaintiff, testified that he drew the deed from Samuel Skaife to Jacques Pillard; that the parties came to his office together, and “ Skaife said he had sold to Pillard that portion of his farm lying east of the Buncombe Road, and wanted to make a deed.” This question was then asked of the witness and answered: “ Q. Did Pillard say
Hollowing this, and down to the time of the present "controversy, the respective parties occupied and cultivated up to the line of the road as traveled. In the year 1898, Samuel Skaife, still seised of said lot 2, died, intestate. In the course of the settlement of his estate, the Skaife farm, so called, consisting of said lot 2 and an eighty-acre tract and another lot, both lying to the west of said lot, was put up for sale at auction. The sale was conducted by one Meyer, and, as a witness, he testified that at the time of the sale he announced that according to the old deeds the farm contained one hundred and twenty-two and forty-five one hundredths acres, and “ it was sold according to the recorded plat; that announcement was made at the time.” The sale was made by the acre, and the farm was bid in by plaintiff at $38.35 per acre. Plaintiff paid part of the purchase price at the time, and requested that before paying the balance a survey be had to determine the exact number-of acres. A survey was made by the county surveyor, both plaintiff and defendant being present, and from this it was developed that the location of Buncombe Hoad as shown on the plat, and as existing in fact, did not correspond; that, taking the road as existing to be the dividing line between the lots, lot 2 exceeded the acreage called for by the plat by one and forty-six one hundredths acres, while lot 1 fell correspondingly short. The deed to plaintiff was drawn at the time of the sale, and recites a consideration of $4,695, and the description contained therein is by lot and government numbers, without mention of the acreage. If plaintiff paid any sum additional to that named in the deed, the record does not disclose the fact. As already stated, defendant purchased lot 1 in the year following plaintiff’s purchase, and in 1903 he
It follows from what we have said that there must be a new trial of the case, and it will be remanded for that purpose.— Reversed. '