Wiley v. Lovely

Graves, J. Wiley, as assignee of the right of action, sued for an alleged breach of the covenant of seizin contained in a deed given by Lovely to one Charles M. Sheldon September 4,1877. The cause was tried without a jury and the circuit judge-found- for the defendant. The deed set forth the property as being “ all that certain piece or parcel of land lying and being in the village of Fowlerville, county of Livingston and State of Michigan, and more particularly known and described as follows, to-wit: village lot number seventy-seven (77) of the original plat of the village of Eowlerville, as duly laid out, platted, and recorded in the office of the register of' deeds for said county of Livingston.” The first plat of the village, which is of record, only designates twenty-nine lots and they are marked from one to twenty-nine. It therefore contains no lot numbered seventy-seven. Another plat is found in the record but it seems not to have been so executed as to entitle it to be recorded. This plat appears to have contained the lot under [85] the designation of lot seventy-seven, but the register in transcribing it marked it by mistake as seventy-eight and hence his copy represents two adjoining lots as respectively lot seventy-eight. It therefore appears that the record of plats discloses no lot numbered seventy-seven, and on the strength of this fact the action is prosecuted. The theory is that as the lawful record contains no lot seventj-seven the property the defendant assumed to convey never had any existence. But it is only necessary to glance at the further facts in the record to see that this view is wholly untenable. The case shows that another plat which has not been recorded does contain this lot, and that for more than twenty-five years the specific piece of ground has been held, taxed, recognized, known and dealt with as lot seventy-seven. The grant was not impaired by the omission to record the plat, and it was competent to identify the parcel by parol evidence: Johnstone v. Scott 11 Mich. 232; Noonan v. Lee 2 Black 500. It is often necessary to resort to such evidence for the purpose of applying the deed to the subject-matter. That part of the description which speaks of the registry of the plat, and is found incorrect, may be rejected without any detriment: Johnstone v. Scott, supra; Slater v. Breese 36 Mich. 77; Jackson v. Clark 7 Johns. 217; Eggleston v. Bradford 10 Ohio 312; Noonan v. Lee, supra; Butler v. Trustees First Presb. Church of Minneapolis 27 Minn. 355 ; Doe ex dem. Smith v. Galloway 5 B. & Ad. 43; Doe ex dem. Roberts v. Parry 13 M. & W. 356. Enough is left to satisfy all legal requirements : Goodenow v. Curtis 18 Mich. 298 ; Sargent v. Adams 3 Gray 72; Gerrish v. Towne id. 82; Woods v. Sawin 4 Gray 322; Doe ex dem. Roberts v. Parry, supra; Jones v. Smith 73 N. Y. 205; Schlief v. Hart 29 Ohio St. 150. The description was irregular but there was no lack of subject-matter. Nothing was required which an interpretation and application according to the rules of law would not supply. But another view is urged. It is contended that defend- ■ ant’s grantor derived title through an execution sale against [86] one Tucker, and that this sale was void on the ground that the premises were Tucker’s homestead. "Whatever may be the truth concerning these facts it is sufficient that they are not found. Moreover there is no finding of damage. It is obvious that the record affords no foundation for a judgment in the plaintiff’s favor. See Shelden v. Dutcher 35 Mich. 10; Burdick v. Chamberlain 38 Mich. 610, and many other cases. May the ease be dealt with as a mistrial ? A further finding was asked on three points : (1) Whether a patent covering the premises had been issued by the United States, and if so at what time and to whom ? (2) What title defendant claimed and assumed to hold at the time of his deed to Sheldon, and whether he had or claimed any other than was obtained by means of the execution sale against Tucker. (3) Whether during the proceedings by execution the lot was not Tucker’s homestead. No further finding was claimed. The circuit judge denied the application and refused to find on either point, and the plaintiff’s counsel excepted. The record contains a bill of exceptions which purports to set forth all the evidence. But it is needless to inquire whether the showing was such as to make it the judge’s duty as trier of the facts to make express findings on these questions, and it is also useless to consider whether the case was fairly susceptible of findings on these subjects and under these requests, which would have shown, with the other facts, the breach of covenant complained of. ■ Had the judge fully complied with these requests and made findings on all the matters suggested and had such findings been in favor of the plaintiff in their utmost extent, yet there would have been no basis for a judgment in his favor. This court could not have proceeded to ascertain and assess the damage however well fixed the measure may be. The plaintiff’s brief contains a statement that “ it is agreed that if the plaintiff recovers he shall recover $500 and interest from September 4, 1877.” This is no groundwork for a judgment. The materials for constructing a judgment [87] must appear in the record, and they must be such as to generate the legal conclusion which constitutes the result. They are not to be collected from tradition or the argument of counsel. Had the finding conformed to the plaintiffs, requests the result must have been the same, because the state of facts even then would not have supported a judgment in his favor. There seems to be no room therefore for regarding the proceeding as a mistrial. Moreover the plaintiff does not aslc it. The judgment must stand affirmed with costs. The other Justices concurred.