Collins v. Rogers

Sherwood, Judge, delivered tbe opinion of the court. Ejectment for four acres of land in a square form in tbe northeast corner of tbe southeast quarter of section 10, T. 41, R. 26. Answer a general denial, and also an equitable defense to tbe effect that plaintiff had, on tbe 6th day of June, 1862, sold tbe four acres in question to bis brother, James H. Collins (through whom defendant claims title), at tbe same time that he, plaintiff, [516] sold and conveyed to his said brother, the residue of the northeast quarter of the southeast quarter of section 10, T. 41, R. 26, but that, by mistake, the four acre piece was not included in the conveyance, although intended so tq be. The plaintiff denied these allegations, but the court, on final hearing, found there was such a mistake as in the answer alleged, and decreed accordingly .for the defendant. The title of the plaintiff originated in a deed made to himself and brother, February 2d, 1858, by OIney and wife, which conveyed the following described land: the southwest quarter of section 11 ; also, four acres in a square in the northeast corner of the southeast quarter of section 10, all in T. 41, R. 26 ; and this deed was the only evidence of title offered by plaintiff. The defendant on his part offered in evidence a deed, made June 6th, 1862, by plaintiff to his said brother, which fully described the land in suit, except that it located it in the wrong section; thus, this deed described the land as four acres in a square in the northeast corner of the southeast quarter of section number 11, T. 41, R. 26. And the deed from plaintiff’s brother, James IT. Collins, to J. N. Barlow, made in January, 1865, described the premises sued for correctly, as does also the deed made in February, 1866, by Barlow, to defendant. We think the proof ample to show that a mistake was made in the conveyance executed by plaintiff to his brother, James IT. Collins. In addition to that, plaintiff acted as the agent of his brother in effecting the trade with Barlow, sent the deed on to Illinois t.o his brother to have it executed, and represented that his brother had the title, and afterwards delivered the deed obtained from his brother, and received the money for the land. Moreover, plaintiff stood silently by for years, while defendant, in good faith, has made valuable and lasting improvements on the disputed premises. Taking into consideration all the foregoing circumstances, we feel no hesitancy in affirming the judgment of the trial court. The other judges concur, except Judge Wagner, who is absent.