44 Mich. 14 | Mich. | 1880
Cooley instituted an action of ejectment for .a strip of land in Seager’s possession, and the latter brought this bill for a decree declaratory of his rights and perpetually enjoining their infringement. The case was heard on pleadings and evidence, and the court granted relief. The defendant appealed.
November 29, 1858, John Gallagher conveyed to Casper
February 23d, 1860, Loeher executed to Charles T. Disbrow a warranty deed for the west acre and a half of the south half of out-lot forty-four, and the deed was recorded in August following; and on the first of January, 1861, Dis-brow executed a deed to Shepherd Knapp for the same description, which was recorded. At the time when these deeds were given, complainant was still holding under his written agreement from Loeher, but on the 6th of March, 1861, and about two months after the deed from Disbrow to Knapp and about a year subsequent to Loeher’s deed to Dis-brow, the complainant received a deed from Loeher, which was intended to carry out and comply with Loeher’s obliga
Subsequent to this deed from Loeher to complainant the defendant Cooley received a deed from Shepherd Knapp containing the same description as the deed to Disbrow, and calling for the west acre and a half.
In June, 1875, a survey was made,- and it was then ascertained that neither of the three parcels as actually enclosed and occupied contained as much land as the terms of the papers called for, and that the center parcel in complainant’s possession, instead of being an acre, was only 79^100 of an acre. Immediately the defendant claimed in substance that as the deed to Disbrow, his predecessor in title, called for a full acre and a half, and was the prior deed from Loeher, the common source of the title of complainant and defendant, he was absolutely entitled as against complainant to that quantity and as a consequence had lawful right to a sufficient strip from the west side of complainant’s enclosure to make up the full west acre and a half. He accordingly brought his ejectment, as before mentioned, for the strip referred to.
The point is made that the bill is wanting in equity on the ground that complainant’s case might have been used as defense in the ejectment.
The position is not tenable. The decision there must have been in favor of the superior legal title, and that seems to have been in Cooley. His claim is under Loeher, the common source of title, and through a deed from him prior to that held by complainant, and such priority implies a legal preference in the competition between the parties for quantity.
It is next contended that the grant by deed to complainant executed the contract and put an end to its operation, a.nd that the deed itself, by force of its terms, confines- complainant to whatever space there happens to be between the excepted parcel on the east and an acre and a half on the west. Only a few words will be given to this objection. The deed was given to carry out the contract, and not to abridge any of the rights it was made to secure. Such, at least, is the fair inference, inasmuch as all the evidence tends that way and there is nothing to the contrary.
The defendant holds with notice that his title was .created in subordination to complainant’s right to the strip sued for
The case contains references to tax titles, but defendant has wisely discarded them. They appear invalid and are certainly of no consequence whatever in this contention. It may be that the form of relief which the court decreed is not the most appropriate, but if so it is because something more salutary might have been allowed. But the defendant has no cause to complain and the complainant has not appealed.
1 think the decree should be affirmed'with costs.