Merrifield v. Ingersoll ( 1886 )

Campbell, C. J.

Complainants seek relief under the following circumstances: In 1850 one Jane W. Foot I mortgaged the N. E. I of section 33, in township 3 N., of range 3 W., to one Charles B. Cham’plin, who assigned it to Horace S. Isinon, who foreclosed it in chancery, and ob; .tained a decyee June ’6, 1856. This decree contained’ an error whereby it ordered’ the S. E: £ instead of the N. E; \ to be sold. If the decree was in the usual form, it contained such a reference to the mortgage as would have furnished on its face the means of correction. As no copy of it was attached to the bill in this cause, we do not know its. precise form.

The sale under this decree was made to the complainant, Mr. Ismon, under the same erroneous description. Ismon transferred by proper description the E. ½ of the N. E. ½ of section 33 to parties under whom complainants hold title; They have paid taxes, but have never taken actual possession ; but it has been known as theirs.

In 1881 defendant Arthur Ingersoll applied to complainants to become their agent for its sale. Upon investigating the title, the error in the decree was discovered, and it was concluded not to sell until it could be rectified. Ingersoll secretly found out Mrs. Eoot, and got a deed from her, and mortgaged the property to defendant Edgerton, and then sold to defendant Piatt, under whom the remaining defendants claim. The bill seeks relief against these parties, and to rectify the title.

All the defendants joined in a demurrer, which was probably designed to be a general demurrer fcjr want of equity, although not conforming exactly to that pleading. It contains no specific suggestions, and has been treated as a general demurrer. "We may so regard it, and, as no other grounds appear, it must be governed by the rules applicable, to such a demurrer. The court below dismissed the bill.

If this bill had been specially demurred to, it contains serious defects. There is not enough averred, inasmuch as complainants are not in possession, to show that this mistake in the decree was rectified on the sale, so as to identify the land sold as the true parcel. Neither is it shown, although very probably such was the fact, that the conduct or acquiescence of Mrs. Eoot after the decree waived any such defect in the sale. If it becomes necessary to correct the decree and resell, then the parties interested in the other half of the land should have been brought in.

But there is no doubt of complainants’ interest in having the mistake rectified. As the chancery record, if not the decree itself, furnishes means of determining what land wa3 really meant, the lapse of time will not prevent the correction, as all the papers must be read together: Emery v. Whitwell, 6 Mich. 474; Montgomery v. Merrill, 36 Mich. 102; Souvais v. Leavitt, 53 Mich. 577.

The bill asks for an amendment of the decree, and shows sufficient cause for making it. This is enough to destroy the effect of the general demurrer. Complainants show, also, sufficient reason for having the decree carried into effect if it should turn out that a new sale is necessary; and if that is done, they would, of course, be entitled to the benefit of all their outlays for taxes. But in order to have a resale, the purchasers of the rest of the property covered by the decree should be brought in. If Mrs. Foot’s conduct has amounted to a waiver, no resale would be necessary, if defendants do not hold in good faith, as on the bill they do not appear to.

While all these considerations may render it necessary to make considerable changes in the bill, it has enough equity to furnish-means of amendment, and defendants, by raising no points by their demurrer to defects of parties or other omissions, have no right to a dismissal.

The decree dismissing the bill must be reversed, with costs of both courts, and defendants required to answer. Complainants may amend at any time within forty days, or dismiss their bill without prejudice, if they shall choose to do so.

The other Justices concurred.