Taber v. Shattuck

Campbell, J. The bill in this case was filed to remove a. cloud upon complainant’s title arising out of the supposed confusion or change of one of the lines from which distances-were reckoned in ascertaining the location of her land. Erom the testimony it appeared that the difficulty arose from another source, and the bill was amended so as to meet the. real facts, and obtain a correction of the deed to complainant, as well as a release from defendant. Such a decree was-given below; and defendants appeal. The controversy arose in this wise : • In May, 1866, defendant Peak owned a parcel of land-lying on the south side of section 36, in town 9 north of [373] range 11 west, in Kent county, extending from the west bank -of Rogue river to the southwest corner of the east half of the southwest quarter, 13 chains and 59 links in depth northward, and 15 chains 25 links wide on the south, and 13 chains •50 links wide on the north side upon an east and west road. There was also a north and south road along the river. In August, 1869, Peak sold to Mrs. Harriet M. Bates a parcel eight rods wide and ten rods deep north and south, lying -one hundred rods east of the southwest corner of section •36, and twenty rods east of the quarter section corner before-mentioned, or thereabouts. This, if the distances are 'correct, would leave Mrs. Bates’ line about thirty-nine rods west of the river on the southerly side. On May 19, 1871, Peak sold to Lafayette McConnell a parcel of land four rods and five feet wide by ten rods north and south, which was intended to be described as joining Mrs. Bates and just east of her, but which was, in fact, so described as to cover a parcel lying between four and five rods east of it. McConnell, however, was put in possession ■of the lot adjoining Mrs. Bates, and the mistake in the description was not discovered. It does not appear distinctly how the mistake arose, but it appears that there is a jog in the surveys, so that the west line of the town just south is about ten rods east of the west line of the town where the land in question lies, and it is probable that the corners were thus confounded. McConnell paid in full for the lot, and improved it by building a dwelling which he occupied with his family. In November, 1875, McConnell sold, by the same erroneous description, to George M. Wheeloek. Wheelock sold to Theodore I. Phelps, January 3,1876, and Phelps, on January '31, 1876, conveyed to Marcia E. Travis, the name being in the deed called Maria E. Travis. It is suggested that in this -description, which otherwise is, as is the description in all the preceding deeds, identical with that in the grant to McConnell, the word “ rods ” is left out in describing the starting point, which is thus rendered indefinite. A careful examination, however, will show that the deed itself supplies [374] the supposed defect, which is only apparent. If found anywhere but in a deed the omission would be readily understood as meant to avoid tautology. The practice of conveyancersis to be more specific, but a description cannot be made bad - by any such defect, if otherwise good. It was subject, however, to the same objection as the former deeds, — that it located the land too far east. The property, however, was given into the grantee’s possession as occupied by McConnell, and her tenant was placed upon it. On the 15th day of December, 1876, Mrs. Travis gave a-, mortgage on the property to complainant. This mortgage-was afterwards foreclosed in equity and the property bid in, and complainant was put in possession by the sheriff: on a writ, of assistance. After this mortgage, on May 19, 1877, Mrs. Travis conveyed to Henry K. Crissman the lot in controversy, by a correct description. At this time she had no title except that derived from Phelps. ’ Crissman did not record his deed,, which was first produced during this controversy. March 18, 1878, Crissman conveyed to Anna Conant by a-correct description, but her deed was not on record when complainant filed her foreclosure bill. Anna Conant mortgaged to defendant, who foreclosed her mortgage by advertisement,, and became vested with the title by deed from the purchaser, who was her agent. During all this time Peak had never-conveyed to any one by true description, and there was nothing-of record to connect Mrs. Conant with either Peak or Mrs. Travis. Complainant made Crissman and wife, Phidelia Conant and Peter W. Crissman, defendants, as well as Mrs. Travis and her husband; mentioning them in the usual way applicable to claimants of subsequent interests. None of them appeared or set up any rights. ' In June, 1879, Alonzo R. Shattuck, husband of defendant Nellie B. Shattuck, procured an agent to apply to Peak for a quitclaim deed of the premises. Peak informed the agent that he had sold the land to McConnell. On learning that there was something wrong about the description, and being; [375] assured it would harm no one, Peak made a quitclaim conveyance, without any consideration, to Mr. Shattuck, who afterwards conveyed to his wife. An action of ejectment in her interest brought the fact of a mistake in the description to notice, and led to this litigation. Although there is a good deal of testimony in this record, there is nothing which in any way impairs the right of complainant to the relief given her. It appears fully that she has obtained a proper sale and title of the land in question by the description under which it was sold and occupied. It also appears that defendant Nellie Shattuck never got any title by any better description or from any superior source until defendant Peak conveyed to her husband under the supposition that he was doing nothing to interfere with the title he had meant to grant, of which Shattuck’s agent was fully informed. Obtaining the deed under such circumstances was such a fraud on complainant as entitles her to have the deed enure to her benefit. In foreclosing her mortgage complainant made all persons' parties who are shown by the testimony to have been then entitled to be brought in, and her notice of lis pendens referred to the mortgage by its record, so that even if the description of the lands did not contain (as we think it did), enough to identify it with the paper title, this reference identified it. And as it is entirely clear that when Peak conveyed to Shattuck every one understood what the difficulty with the title was, and as Crissman, under whom Mrs. Shattuck claims, never had any title that did not come from the chain made under the old description, the whole defense is illusory. Whoever devised the procurement of Peak’s- quitclaim did so for a purpose which no court can sanction. We can see no reason why Crissman should be made a party here. lie was a party to the foreclosure suit, and bound by that, and knew what complainant’s title was. He has now no interest in the land, and under such circumstances the possibility of liability under a covenant of warranty is not such as to require him to be brought in. We think the decree below was warranted by the facts, and [376] should be affirmed. But we agree with defendant’s counsel that inasmuch as the bill, as originally filed, was not the one relied on at the final hearing, and as the testimony was substantially taken under the early issue, the defendant Mrs. Shattuck should have recovered costs below. The affirmance therefore will be with costs of this Court to complainant, and costs of the court below to defendant Shattuck, which may be set off against each other on the taxation, leaving the proper party to recover the balance. The other Justices concurred.