Farabaugh v. Rhode

9 N.W.2d 562, 305 Mich. 234, 1943 Mich. LEXIS 361
CourtMichigan Supreme Court
DecidedMay 18, 1943
DocketDocket No. 55, Calendar No. 42,196.
StatusPublished
Cited by19 cases

This text of 9 N.W.2d 562 (Farabaugh v. Rhode) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farabaugh v. Rhode, 9 N.W.2d 562, 305 Mich. 234, 1943 Mich. LEXIS 361 (Mich. 1943).

Opinions

Butzel, J.

Gallitzen A. Farabaugh brought suit to quiet title to five small parcels of property all situated in the north fractional half of section 13, township 6 south, range 20 west in Lake township, Berrien county, Michigan. Instead of describing the *237 parcels by metes and bounds, we have marked them for purposes of clarity and brevity “A,” “B,” “C,” “D” and “E” on the plat which was introduced as Exhibit 1 by plaintiff and a rough copy of which is attached to this opinion. There were a large number of defendants in the- case all of whom, with the exception of the three appellants, Dorothy Coleman Rhode, William A. Hutchison, and Mary A. Hutchison, were defaulted for nonappearance.

In the original government survey, the acreage of the north fractional half of section 13, township 6 south, range 20 west, in Lake township, Berrien county, Michigan, and including both the northerly 40 acres and the southerly 25% acres, is shown to be 95.5 acres, the meander line being used as the west boundary and the section line as -the east boundary. The strip of land, lying between the government meander line and the shores of Lake Michigan, ranges from 230 to 250 feet in width. In order to properly trace the title, it would be necessary to give the complete abstract as printed in the record from the year 1895, when it is conceded that Kate A. Whitacre became the owner of the fractional half-section. Limitation of space .prevents us from doing this and we shall omit all references to such entries in the abstract as do not materially affect the questions in this case.

Plaintiff relies on the abstract, copies of plat, surveys, et cetera, and the testimony of William J. Cleary, an experienced civil engineer, the only witness who appeared at the hearing. He had made a careful survey of the entire tract and made the survey shown by the plat, Exhibit 1, in November, 1938, shortly before the suit was begun. The correctness of the Cleary plat is not questioned. His survey of the entire property disclosed the fact that there were 96.3 acres in the north fractional half of *238 section. 13 hereinbefore described. When Kate A. Whitacre obtained the deed of the entire tract in 1895, the property was described as 95.5 acres instead of 96.3 acres as shown by the Cleary survey. The difference possibly may be accounted for by the small narrow strip marked “A” on the Cleary plat running the entire width of the property.

All parties trace their title back to Kate A. Whit-acre who paid the sum of $1,600 for the entire 95.5 acres in 1895 when she took title. In 1897 she gave a warranty deed to Arthur J. Pickering for the property described as follows:

“20 acres off NW corner of S. 55% acres being S. 5.5% acres of Nfrl % of sec. 13, twp. 6 S., R. 20 W. 95.5 acres more or less. The above 20 acres to begin at NW corner of a line E. 1221 feet; thence S. 714 feet; thence W. 1221 feet; thence N. 714 feet to place of beginning.”

Thus the deed describes by metes and bounds a strip extending 1,221 feet on the northerly and southerly sides and 714 feet on the easterly and westerly sides, the entire description embracing 20 acres off the northwest corner of the southerly 55% acres. The actual distance from the northwest corner of the south 55% acres to the east section line is 1.558.25 feet. In the Whitacre-Pickering deed the line runs only 1221 feet east from the northwest corner and then runs south. This leaves a tract 337.25 feet east and west by 714 north and south between the east line of the 20 acres and the easterly section line, parcel “B.” Between the west line of the 20 acres and the meander line of Lake Michigan is another comparatively small piece of property, triangular in shape with an altitude of 714 feet and a base of 191.1 feet wide, parcel “D.” The issue as to defendant Rhode’s title to the Coleman *239 tract is whether the property east and west of the metes and bounds description, parcels “B” and “D,” were conveyed to Pickering through whom Mrs. Rhode traces title by mesne conveyances or whether it was retained by Mrs. Whitacre through whose heirs plaintiff derives title. The same issue is presented as to the title to the 'Hutchison tract, involving parcels “C” and “E,” except that the deed of the original grantor dated May 10, 1899, described the property as follows:

“5 acres north part south 35% acres * * * beginning at northwest corner said 35% acres; east 80 rods; south 10 rods; west 80 rods; north 10 rods along lake to place of beginning.”

In plaintiff’s bill he claimed title to parcels “A,” ‘ ‘ B, ” “ C, ” ‘ ‘ D, ” and ‘ ‘ E ” through deeds from the heirs of Kate A. Whitacre and of William H. English, who was a brother of Mrs. Whitacre and also a grantee of part of the land. Defendant Dorothy Coleman Rhode filed an answer and also gave notice of an affirmative defense in which she asks that plaintiff be denied all relief and that the title to parcels “B” and “D” east and west of the parcel marked “Coleman” on the plat be declared to be in.her. Defendants Hutchison in their answer ask that plaintiff be denied all relief, and that the title be quieted in them to the parcels east and west of the tract marked “Hutchison” on Exhibit 1.

The trial judge closely examined the abstract and Mr. Cleary’s testimony and in a very carefully considered opinion held that since the property was described by metes and bounds and the amount of acreage was stated he was bound by the record title.

This is an equity case'which we hear de novo. It would have been better practice had the defendants respectively filed cross bills asking reformation of *240 the descriptions in the various deeds. However, the issues and evidence would have been- practically the same as presented on this record, and we would come to the same conclusions had such cross bills been filed.

The general rule is that courts will follow the plain language in a deed in which there is no ambiguity. If, however, there is an ambiguity, or if the deeds fail to express the obvious intention of the parties, the courts will try to arrive at the intention of the parties and in accordance therewith grant or deny the relief asked for. Thus, in Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264, we stated that where there is any doubt as to the meaning of an instrument, the courts will consider the situation, acts, conduct and dealings of the parties to the instrument and also as to the subject matter.

In Willey v. Snyder, 34 Mich. 60, Justice Cooley stated:

“Descriptions do not identify of themselves; they only furnish the means of identification. They give us certain marks or characteristics, — perhaps historical data or incidents, — by the aid of which we may single out the thing intended from all others; not by the description alone, but by that explained and applied. Even lands are not identified by description until we place ourselves in the position of the parties by whom the description has been prepared, and read it with the knowledge of the subject matter which they had at the time.”

To like effect, see Monfort v. Stevens, 68 Mich.

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Bluebook (online)
9 N.W.2d 562, 305 Mich. 234, 1943 Mich. LEXIS 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farabaugh-v-rhode-mich-1943.