Lundberg v. Wolbrink , 331 Mich. 596 ( 1951 )

331 Mich. 596 (1951) 50 N.W.2d 168

LUNDBERG
v.
WOLBRINK.

Docket No. 22, Calendar No. 45,191.

Supreme Court of Michigan.

Decided December 3, 1951.

Philip L. Hogan, for plaintiffs.

Linsey, Shivel, Phelps & Vander Wal, for defendants.

SHARPE, J.

This is an action in ejectment and involves possession of the south 1/2 of lots 11 and 12, block 2, Coridon Smith's Addition to the village of Sparta. It appears that Villa Saur was the owner of the above lots 11 and 12. On the southerly portion of lot No 12 is a residence and on the northerly portion of lot No 12 is an oil station, but a part of the station is located on the south half of lot No 12.

Willard Saur is the son of Villa Saur and acted as her agent. He arranged the sale of the south half of the lots to plaintiffs on August 1, 1946. He also arranged the leasing of the north half of the lots to defendant Gordon J. Wolbrink, then the sale to him on land contract April 8, 1947, and a deed December 31, 1948. On October 16, 1950, a survey was made of the property and it was found that the dividing line between the north and south half of lot No 12 would run through the south 7 1/2 feet of the oil station. No survey of the property was made prior to its purchase by plaintiffs and defendant; and no one knew where the dividing line was. During 1947 and 1948, the supervisor of the township assessed the north 82 feet of lots 11 and 12 to defendant and the south 50 feet to plaintiffs.

It is the claim of defendants that the line was established by Willard Saur, Frank Lundberg and G.J. Wolbrink at a point 82 feet from the north side of lots 11 and 12 which would include the oil station as a part of defendant's property.

Defendants filed an answer to plaintiffs' declaration, stating:

"1. That lots 11 and 12 of block 2 of Coridon Smith's Addition to the village of Sparta, Michigan, was owned by a common grantor, that is, one Villa Saur. * * *

"5. Defendants allege that the said common grantor, having established the line between the property plaintiffs are purchasing and the property purchased by defendant Wolbrink by a practical location, the line so established is the line between the properties and not the surveyed line in accordance with the terms of the deed."

The trial court entered judgment in favor of defendants. In his opinion, he relied on Maes v. Olmsted, 247 Mich. 180, where we said:

"The rule is stated in Herse v. Questa, 100 App Div (NY) 59, as reported in 91 NY Supp 778:

"``Where adjoining owners took their conveyances from a common grantor with reference to a boundary line he had located on the ground, the deeds describing the tracts as certain lots in a block, the location was, irrespective of lapse of time, binding on the owners and those claiming under them. (Syllabus)'"

Plaintiffs appeal and urge that the trial court was in error in applying the law of equity to an action in ejectment. The Olmsted Case relied on by the trial court was a suit in equity to quiet title to the boundary line between 2 lots. The instant case is an action in ejectment begun in the circuit court of Kent county on the theory that defendants hold possession of real estate owned by plaintiffs.

In Bush v. Merriman, 87 Mich. 260, we said:

"In this State the distinction between law and equity, as applied to remedies, has been kept up.^[*] The courts of law have no jurisdiction to reform written agreements. This jurisdiction is exclusively vested in courts of equity, and it has long been settled that if, by reason of fraud, mistake, accident, or surprise, an instrument does not express the true intention and meaning of the parties, equity will upon satisfactory evidence reform it."

In Skiba v. Gustin, 161 Mich. 358, we said:

"Nothing is better settled than that in this State courts of law have no jurisdiction to reform written instruments."

In Jensen v. Shevitz, 234 Mich. 212, we said:

"There can be no question of the right of a chancery court to grant relief of reformation of a contract on the ground of fraud or mutual mistake. This cannot be done in a court of law."

See, also, Scott v. Grow, 301 Mich. 226 (141 A.L.R. 819); Doelle v. Read, 329 Mich. 655.

In the case at bar, plaintiffs brought their action in ejectment. Defendants filed an answer claiming an equitable defense. The trial court found that defendants were not guilty of unlawfully withholding from plaintiffs the possession of the premises described in plaintiff's declaration. The judgment of the trial court is based upon an application of equitable principles. This may not be done in an ejectment case. The judgment is reversed and remanded for entry of judgment in favor of plaintiffs. Plaintiffs may recover costs.

REID, C.J., and BOYLES, NORTH, BUTZEL, and BUSHNELL, JJ., concurred with SHARPE, J. DETHMERS and CARR, JJ., concurred in the result.

NOTES

[*] Since the decision of the Bush Case the Constitution of 1908 was adopted. Article 7, § 5 provides in part: "The legislature shall, as far as practicable, abolish distinctions between law and equity proceedings." — REPORTER.