Brickey v. Linnertz

Mr. Chief Justice Farmer delivered the opinion of the court: Which' of the surveys is correct is not involved in this suit, as plaintiff in error concedes that the new survey in this action is to be treated as correct. The proof shows •that the father of John Drury had built the house designated “old house” on the plats before any conveyance was made by Brickey to his son, John Drury. There is very little contradiction in the evidence. The proof shows that John Drury stated, before he bought from Brickey, that he wanted to build a new house but desired to buy the land from Brickey before doing so, and after procuring the conveyance from Brickey he built the new house just across the road from where the old one was built, and either he or tenants occupied it until he sold to Linnertz. The proof shows the land occupied by Drury after acquiring the deed from Brickey was that shown in plat No. i, designated as Drury land, and it was the same land that Binnertz took possession of under his deed from Drury and which defendant in error is now in possession of. Defendant in error testified that his father and his tenants occupied the new house built by Drury after the conveyance from the latter until his father’s death and that the defendant in error is now living in it; that when he bought the land he thought he was buying the land his father, brother and himself had been in possession of up to that time; that that was the land he thought he was paying for; that he still has all of that land, and what he is seeking to recover in the ejectment suit is in addition to it. .He testified that neither he nor his father ever had possession of the land lying north-west of the ditch made by Brickey. The ditch appears to have been dug in 1880, and one of the men who helped to dig it testified that Franklin W. Brickey showed them where to dig it and located it with reference to the rock at the Louvier corner; that the elder Binnertz was there at the time and said nothing. The ditch was placed on or near what Brickey claimed to be the line between surveys 342 and 343 but which according to the new survey was between 341 and 342. Previous to the construction of the ditch Drury had possession of a strip eighteen or twenty yards wide north-west of the ditch. Carr, who was a tenant of Drury, testified Drury showed him the lines and told him he thought his north-west fence was over the line on Brickey’s land, but said for his tenant to go ahead and cultivate the land to the fence if Brickey didn’t object. From this and other proof it is clear that neither defendant in error nor his father ever had possession of any part of the land in controversy and that Drury never had possession of any part of it except a strip eighteen or twenty yards wide, and he did not claim to own that strip but said it belonged to Brickey. The case, then, as made by the proof, appears to be that Brickey in 1855 owned surveys 341 and 342 and at that time owned no other land in that neighborhood. Both he and Drury supposing that the north-eastern ends of the said surveys were located as shown by plat No. 1, Drury sought to buy, and Brickey agreed to sell to him, the north-eastern ends of said surveys, containing one hundred acres. The deed describes the land, in part, as extending “as far south to the land heretofore deeded to Eugene Louvier by Eranklin W. Brickey” and being a part of surveys 341 and 342. Drury took possession of the land he supposed Brickey conveyed to him as shown by plat No. 1 and built a new house near the south-east line. The facts were, Brickey did not own the tract on which the house was built, (supposedly survey 341,) but the tract on which the hoúse was built was the north-eastern end of survey 662. In addition to it, Drury took possession of the tract adjoining it on the north-west, supposed at that time to be survey 342 but which was, in fact, survey 341. His possession of this latter tract extended up to a few yards beyond its northwest line, and as we understand the evidence this narrow strip beyond the north-west line is all of the land in controversy that Drury ever had possession of and that he never claimed but conceded was Brickey’s. Neither defendant in error nor his father ever had possession of any part of the land in controversy. Plaintiff in error insists that defendant in error now has by the Statute of Limitations an indefeasible title to the north-east end of survey 662, and to allow him a recovery of the land claimed in survey 342 would be giving him that much more land than he ever bought. It is true, as claimed by plaintiff in error, that the minds of Brickey and Drury never did meet on survey 342 as it is shown to exist by the new survey. They had in mind when the negotiations for the purchase and conveyance were made, surveys 341 and 342 as shown by the old survey in plat No. 1. Both parties believing Brickey owned the land shown in plat No. 1, he did not suppose he was conveying, nor did Drury suppose he was buying, survey 342 as shown in plat No. 2. The question presented is one of some novelty, and we do not find any authority cited in the briefs which sheds much light on it. Under the circumstances shown by the proof, specific performance of the contract to convey survey 342 could not have been enforced, for Brickey did not intend to convey it and Drury had not bargained for it. The deed could not have been reformed so as to describe survey 662, for Brickey did not own it. The only remedy afforded that might have been availed of was rescission, but that remedy, to have been effectual, should have been resorted to. in apt time between the parties to the conveyance. The relief sought by the bill in this case is not analogous to rescission, but is more in the nature of the specific performance of the contract of Brickey’s grantees to take a tract of land which Brickey did not own in lieu of a tract which he did own and convey. It is not inaptly characterized by counsel for defendant in error to be a suit to enforce a mistake. We are unable to see wherein Brickey has any superior equities tó Linnertz. If Linnertz succeeds in his ejectment suit he will still hold such title to survey 662 as he may be entitled to by the Statute of Limitations, also the land in survey 341 by virtue of the conveyance, and in addition thereto survey 342, which he did not know was the land described in his deed and which he has never been in possession of. Plaintiff in error insists that although the title to a portion of the land Linnertz is in possession of was never conveyed to him by Brickey, as it has become good by lapse of time and he now has as much land, in area, as he contracted for, it would- be inequitable to permit him to recover that portion of the land conveyed by Brickey but of which his grantees never had possession, and which Brickey now has in possession and claims still to own notwithstanding he conveyed it in his deed to Drury. In other words, as Linnertz now has as much land as he contracted for, although he did not acquire it through Brickey, he cannot claim the other land which Brickey did convey, because he would then have more land than he supposed he was buying. If Brickey succeeds, it would be to compel Linnertz to take a tract of land under the conveyance made by Brickey which he did not own but to which Linnertz is said to have acquired a good title by the Statute of Limitations, in lieu of a tract conveyed by the deed from Brickey which he did own, and allow Brickey to retain said tract and the consideration paid therefor. The amount of land conveyed by Brickey to Drury and from him to Linnertz was one hundred acres, and presumably Brickey was paid on that basis. As Brickey did not own at least one-half of the land he put Drury in possession of, to now say he may retain practically one-half of the land he conveyed because his grantees acquired title by limitation to enough land he did not own to make up the amount purchased from him, would be to give him the benefit of the consideration paid for land he had no title to and allow him to retain a part of the land conveyed and for which the consideration was paid. The question resolves itself into whether the benefits of whatever title has been acquired by limitation to survey 662 shall be given to Brickey or Linnertz, and we cannot see that Brickey has any such superior equities that it becomes the duty of a court, under the rules and principles of equity, to interfere. Where the equities are equal the law must prevail. (2 Pomeroy’s Eq. Jur. sec. 683; 11 Am. & Eng. Ency. of Law, p. 188; 16 Cyc. 138.) A case can be imagined where it might be inequitable to permit a recovery under the circumstances of the recovery sought by Linnertz in this case, but there is no proof in the record of any such circumstances. If Brickey has a valid title to survey 343, no reason appears in this record why he has not as much right to claim the north-east end of it as Linnertz has to claim the north-east end of survey 342, if his title to it is valid. In that event it certainly could not be contended that equity should protect Briclcey’s possession of survey 342, and the bare fact that such is a possibility tends to show that he is not entitled to the relief asked in this case. In our opinion the circuit court did not err in dismissing the bill, and its decree is affirmed. Decree affirmed.