104 Mich. 57 | Mich. | 1895
This bill was filed to correct and foreclose a. mortgage for the sum of' $514.40 executed by defendants-to complainant, and also to amend a deed from complainant to defendants conveying the same premises set forth in the mortgage. The deed and mortgage, each bearing' date May 14, 1892, covered lot 9 in block 4 in Carr’s East-addition to the city of Jackson. The complainant had on the 18th day of July, 1885, conveyed by warranty deed a. strip eight feet wide off the north side of the lot. The deed and mortgage in question made no exception or reservation as to the eight-foot parcel. The complainant insists that the omission was wholly due to mistake and inadvertence on the part of the attorney who prepared the-conveyances, and of the parties, and asks to have the description in said instruments reformed so as to carry out the intention of the parties by containing only that part-of lot 9 owned by her on the 14th day of May, 1892, and for a decree for the sale of such premises to satisfy the amount due on the mortgage.
The defendants admit the execution and delivery of the-deed and mortgage, and also of the deed of complainant, of the eight-foot strip to William Page, made in 1885, and that neither the deed nor mortgage contained any exception as to the eight-foot strip. Defendants deny that, they had any knowledge of the sale by complainant of the eight-foot parcel off the north side of the lot in 1885,
A decree was entered for the sale of the premises, except the north eight feet, for the sum of $178.24, the amount remaining due on the mortgage after deducting the sum of $250 allowed by the court for damages for the failure of the complainant to give title to the north eight feet. From this decree the complainant appeals.
It appears that lot 9 was on the east side of. Pleasant street, and was platted 80 feet wide. It was one of a line of lots, extending east and west through this addition, of a uniform width of 80 feet. The lots north of lot 9 were not built upon, nor their boundaries defined by fences.or
It is contended by complainant that this was a mutual
A partial failure of consideration is a defense pro tanto. Jones, Mortg. (4th ed.) § 1490; Dayton v. Melick, 32 N. J. Eq. 570; De Kay v. Bliss, 120 N. Y. 91. In Dayton v. Melick, supra, it was held that when a grantor, by misrepresentations, induces his grantee to believe that the property contains more land than in fact it does contain, such grantee is entitled to a proportionate deduction from the amount due on his mortgage, given for part of the consideration, on its foreclosure. The same rule was laid
The decree is affirmed, with costs.