Cordes v. Coates

Lxon, J. The case turns almost entirely upon questions of fact, and calls for but little discussion. The proofs satisfy us that the contract between the parties for the purchase and sale of the land included all of defendant’s farm north of the highway. Also that defendant gave directions to Mr. Bell to write the deed as it was written in good faith, believing that the descriptions therein covered all his farm north of the highway. Plaintiff accepted the deed in the same belief, and until 1889 neither of them doubted or suspected that the deed failed to convey the whole of the land thus purchased by the plaintiff. The defendant misled the plaintiff, innocently no doubt, by assuring Mm that the deed conveyed to the highway. The plaintiff bought and has paid for the twelve acres, and has occupied and improved the same for many years, erroneously supposing he had title thereto. Why then should not the title be [644] Tested in him? We perceive no valid reason for denying Mm such relief. It is said that the plaintiff has been negligent; bas delayed too long to assert Ms rights. But the defendant led him to believe he had his rights, and as soon as the plaintiff learned the contrary he commenced this action to obtain them. We find here no element of negligence. Again, it is said that there is a variance between the complaint and the findings of fact, in that it is alleged in the complaint that the mistake was that of the person who wrote the deed, while the finding is that it was the mutual mistake of the parties. This variance is now of no importance. The testimony supports the finding, and there was no objection to its admission on the ground of variance. Had such objection been made at the trial, the court would have ordered the complaint amended to correspond with the proofs. The objection not having been so made, the variance must be disregarded. We find no infirmity in the judgment, and hence cannot disturb it. By the Court.— Judgment affirmed.