151 N.W. 888 | S.D. | 1915
The defendants Anna F. McHugh and Mary Ellen Butler, sisters, were the owners of property fronting 249.9 feet on North Main street, in the city of Deadwood, extending back fro-m -.the street 19 feet at its easterly end and 45.5 feet at its westerly end. For the purpose of convenience of reference and to avoid technical metes and bounds descriptions, we may describe it as consisting of three -parcels, viz.: Tract, A, fronting 104 feet on Main street, and extending- back from the street 19 feet at its easterly end and 24.5 fee't at its westerly end; tract B, lying 102.4 feet on- Main street, and extending back from the street 40 feet at its easterly end and 45.5 feet at its westerly end. Between -and connecting these tracts was tract -C, fronting 43.5 on Main street, and extending back from the street 24.5 at its
Plaintiff brought this action alleging that he was the owner of the .property described by metes and bounds which we have designated as tract B, claiming that such property, and such property only, was the property known as the McHugh ice manufacturing plant; that it was mutually so understood by all the parties in the foreclosure action, and “'that the judgment of foreclosure rendered by the court in that action was given upon the understanding and belief that it was induced and concurred in by all of the parties thereto,” and that by mutual mistake the property herein designated as tract A was included, and asked that the description in the sheriff’s deed be corrected to cover only tract B to correspond with the intention of the parties.
Upon the conclusion of the evidence the plaintiff asked leave to amend the complaint to. conform to the proof in this case by alleging:
*188 “That the mutual mistake counted on and consisting in the fact that the court and- the parties intended to litigate concerning, and to.have described in- the judgment not only the property described by metes and bounds in the judgment, but also- the property described as being the property known as the McHugh ice plant, together with the tract intervening between the two tracts just mentioned; the whole being treated and considered as one part”
—which leave was granted notwithstanding the objection of the defendants. There was no apparent reason for 'the request to amend, except that upon the trial it had developed that Mrs. McHugh and her sister were the owners of the intervening tract C.
The court -found the facts for the plaintiff, and entered judgment adjudging the plaintiff .to he the owner of all three tracts and' corrected the 'sheriff’s' deed accordingly. From the judgment and order denying a new trial all of the defendants, except the Baker Ice Machine Company, appeal.
Among the findings of fact objected to by appellants, was the following:
“That what is known as the McHlugh ice manufacturing plant is, and was during the entire course of the litigation hereinbefore referred to, an artificial monument well known and established -consisting of buildings, machinery, etc., on concrete foundations of a substantial and permanent -character.”
The following conclusion of law is also- assailed:
“That the metes and hounds portion of the description contained in said sheriff’s deed and in- the decree of foreclosure upon which the same was issued must give way to the artificial and -permanent monument in said description contained to-wit: what is kno-wn as the McHugh ice manufacturing plant, and that the said metes and bounds description -must be extended so- as to cover and include said artificial and -permanent monument.”
Appellants -contend that the foreclosure judgment, sale, and deed carried only tract A, and that the additional words in the description, “and is- the same property upon which is- situate what is known -as the McHugh ice manufacturing plant,” did not enlarge or change the description, otherwise the effect would he that a description in a mechanic’s lien would be capable of
“Where a description consists in part of metes and bounds, and in part of a reference to a natural or artificial monument, and they conflict, the monument will control the metes and bounds” —and has cited the following authorities in support thereof: 4 Enc. Law, pp. 764, 765, and note page 784; McGray v. Monarch Co., 16 S. D. 111, 91 N. W. 457; Tyler v. Haggart, 19 S. D. 167, 102 N. W. 682; Arneson v. Spawn, 2 S. D. 279, 49 N. W. 1066, 39 Am. St. Rep. 783; Propper v. Wohlwend, 16 N. D. 110, 112 N. W. 967; Case v. Dexter, 106 N. Y. 548, 13 N. E. 450.
Assuming this rule to be a general rule for the determination of boundary lines, still the monument contemplated in that rule is a monument that is in, and a part of, one of the calls in the survey. Those dlecisions and that rule do not contemplate that a metes and boundis; description correct in itself can be altered or changed by any such reference as was appended to the judgment, the sheriff’s certificate of sale, and sheriff’s deed in this case. The so-called monument is not a locative call. Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Hanson v. Red Rock Twp., 4 S. D. 358, 57 N. W. 11. See, generally, 4 R. C. E. pp. 100-111. Such a rule has no application to the present situation.
The judgment and order appealed from are reversed, and the cause remanded for further proceedings not inconsistent herewith.