Paurley v. Harris , 77 Idaho 336 ( 1956 )

PORTER, Justice

(dissenting).

After further consideration of the entire record in this case, I have concluded to dissent from the majority opinion. I am convinced appellants are being deprived of land which they purchased.

Appellants were renting and living upon the South part of the Lots in question at the time they purchased the North part. They knew how the North part and the South part were divided by usage. They believed the dividing line was where they built their fence; and they were encouraged in such belief by the owner, Lillian Ferrell, who acquiesced in the maintenance of the fence. It was only when she had a survey made more than a year later that Lillian Ferrell claimed a different dividing line. The North and South boundaries of the lots run northwest and southeast, which fact has caused the difficulty in this case.

The appellants are an aged couple. They purchased a tract of land as it appeared on the ground. They relied upon the seller to insert the correct description of such tract in the legal papers. This the seller did not do. In the Earnest Money Receipt the land was described as “Lot 3 and North 12% feet of Lot 2, Block 2, Lover’s Lane Add. to Boise City.” In the deed to appellants the land was described as “The North Half of Lots One (1), Two (2) and Three (3), in Block Two (2), of Lover’s Lane Addition to Boise City.” Neither description correctly describes the tract of land purchased by appellants.

The majority decision deprives appellants of their garage and even of the cesspool serving their home. The judgment should be reversed and the title quieted in appellants to the land in issue.

BAKER, District Judge, concurs in the above dissent.