Strayer v. Stone

Rotiirock, J. The cause is triable anew in this court. The agreed abstract is voluminous, and the arguments are elaborate and exhaustive. In addition to the abstract certain plats have been filed in this court for examination in connection with the evidence. A careful investigation of the case has led us to the following conclusions which we will state as briefly as may be without a discussion of the evidence. I. The land in controversy, at the time it was surveyed and platted, was not within the corporate limits of the city of Clinton, and from the recorded plat submitted for our examination we incline to think there was no dedication of the strip of thirty-three feet in Avidth to the public, as a street. It is not named as a street, upon the plat nor in the accompanying descriptive notes. It is true, there seems to be a space of thirty-three feet in front of the lots, but,in view of the fact [336] that plaintiff claims in his testimony that this strip was part of the public road before the plat was made, and the further fact that he did not in his plat designate it as a street, we think nothing more can be deduced from the plat than a recognition of the right of the public to the thirty-three feet as a road. II. It was incumbent upon the plaintiff to establish the alleged mistake in the deed by a clear preponderance of ovii DitED-refor- c^ence< We are of the opinion that in this he lias mation of. failed. We think 'the evidence establishes beyond much doubt that the deed was written just as the parties intended it should be. If there was no mistake, or rather if the alleged mistake has not been established by the evidence, the deed cannot be reformed. ■ III. It is disclosed in evidence that the defendants before they made the purchase went upon the land and examined it, and supposed that the fence was upon the line of the road, and that they made the purchase in that belief. It was in view of this fact, we suppose, that the court reformed the deed so far as to recognize the existence of a public road or highway, over the strip of twenty-two feet outside the fence, not only in front of the land purchased, but in front of lots one, two, three and four. In our opinion this was fully as favorable a decree as the plaintiff was entitled to ask, in view of the fact that there was at least some ground in the evidence for believing that when the sale was made the plaintiff’ purposely concealed the fact that the fence was twelve feet beyond where ho claimed the street or road to be, fearing a knowledge of this fact by defendants would defeat the sale. 2. costs: apportionment of. IY. It is urged that the costs of the action should all have, been adj ndged against the defendants, because the court reformed the deed, and that there was no authority . . .. , 1 m law to apportion the costs. The case is unlike Upson v. Fuller, 43 Iowa, 409, cited, by appellant. That Avas an action for the A'alue of a gun alleged to be Avorth eighty dollars. The plaintiff recovered the value of the gun, Avhich was found to bo Avorth thirty-one dollars, and all but one dollar of the costs Avas adjudged against him. This was- held by this court to be erroneous bo [337] cause the claim was entire and indivisible. The plaintiff in that case recovered upon the whole demand, but not in the amount claimed. This action is in equity. The defendants distinctly disclaimed any interest in the land in front of lots one, two, three and four. In their testimony they claimed that they understood the fence was on the line of the road. The plaintiff’s demand included a reformation of the deed so as to require the fence to be moved back twelve feet. This was the real matter in controversy. The plaintiff’s demand'was not indivisible, he was successful in but a small part of his demand, and only in that which defendants did not seriously dispute. Affirmed.