Cooley v. Marx , 17 Mich. App. 470 ( 1969 )

17 Mich. App. 470 (1969) 169 N.W.2d 655

COOLEY
v.
MARX

Docket No. 5,454.

Michigan Court of Appeals.

Decided May 28, 1969.

Gemrich, Moser, Dombrowski, Bowser & Garvey, for plaintiff.

Theron D. Childs, Jr., for defendants.

BEFORE: QUINN, P.J., and HOLBROOK and T.M. BURNS, JJ.

QUINN, P.J.

Plaintiff filed this action to quiet title to land fronting on Lake Michigan in Berrien county. Defendants Marx own land adjoining plaintiff's land on the northeast, and defendant township owns the land on the southwest. The boundaries between the lands of these defendants and the land of plaintiff are the areas in dispute. The judgment of the trial court fixes these boundaries to the satisfaction of these defendants, but plaintiff is dissatisfied with his northeast boundary as established by the judgment. Defendants Kerr and Beckman were dismissed by the judgment.

The titles of plaintiff, Marx and the township stem from a common grantor, Margaret Glavin. By deed dated September 25, 1914, she conveyed the land adjoining plaintiff on the southwest to the township. By deed dated March 1, 1917, Margaret Glavin conveyed to plaintiff's predecessor in title the land lying between the township and the northeast boundary presently claimed by plaintiff. By mortgage dated January 26, 1940, Margaret Glavin mortgaged to Marxs' predecessor in title the land lying northeast of plaintiff. This mortgage was foreclosed, and by sheriff's deed dated March 17, 1941, Marxs' predecessor in title obtained title to the land adjoining plaintiff on the northeast. An error in the description in the sheriff's deed created an overlap along plaintiff's northeast boundary.

A purchaser at a mortgage foreclosure sale acquires such right, title and interest in the mortgaged premises as the mortgagor possessed at the time the mortgage was executed. Schwartz v. Oakland County Sheriff (1966), 4 Mich. App. 628. At the time the mortgage was executed, Margaret Glavin owned nothing southwest of the northeast line of plaintiff's property as it was established by her deed of March 1, 1917 to his predecessor in title. The record title fixes plaintiff's northeast line as the line described in the deed of March 1, 1917.

Until the events which led to this litigation transpired, there was no dispute between plaintiff and Marx or their predecessors as to the location of their mutual boundary. In fact, as the trial judge found, they did not know where it was. The first event was a survey in 1959 of plaintiff's property by one G.L. Wightman at the request of plaintiff.

Mr. Wightman had previously surveyed property to the northeast of Marx, and as he stated at trial, he had to protect that survey when he surveyed for plaintiff. In doing so, the south line of his survey became shorter than the south line in plaintiff's record title, the angle of the southwest line was changed and the line made longer, and the angle of the northwest line was altered slightly. The net result was to shift the lake frontage of plaintiff several feet to the southwest and into the description of the township land.

Plaintiff's displeasure with this survey led to the second event, another survey of plaintiff's land by Kenneth I. Clark in 1962 at plaintiff's request. This survey conformed to the calls and distances recited in the Cooley title. In 1964, plaintiff brought this action to establish his title to the land portrayed by the Clark survey.

At trial it developed that plaintiff had maintained a fence along the northeast side of his property off and on since sometime in the 1930s. It commenced at a point which is the point of commencement of plaintiff's description according to his record title and according to both surveyors, and ran northwesterly toward the lake in an irregular line, often from tree to tree. As it proceeded northwesterly, it gradually ran more westerly and was about equidistant from the northeast line established by the Clark survey and the same line established by the Wightman survey. After view, the trial judge determined the old fence line to be plaintiff's northeast line on the basis of acquiescence.

In reaching this decision, the trial judge relied on Daley v. Gruber (1960), 361 Mich. 358. We consider Daley inapposite to the case before us. Acquiescence applied in Daley because the fence involved was the point of commencement of defendant's description and marked the boundary between defendant and the adjoining owner, not Daley. In Cooley, nothing was conveyed in relation to the fence. There is no evidence indicating the fence was placed on the northeast line of the Cooley property, and the testimony of Cooley indicates it was placed without reference to his northeast line as a convenience to keep out trespassers. We find no basis for holding the fence to be the line between plaintiff and Marx.

Our de novo review of this record convinces us that the proper line between plaintiff and Marx is the northeast line of the Clark survey.

We also note that defendants are satisfied with the southwest line of plaintiff's property as fixed by the trial judge. The line so fixed was the southwest line of the Clark survey of plaintiff's property. This necessarily fixes plaintiff's northeast line as established by the Clark survey which conformed to the calls and distances of plaintiff's record title. Defendants Marx claimed no more than they owned which precludes any claim of adverse ownership to land lying southwest of plaintiff's northeast line as fixed by the Clark survey. Warner v. Noble (1938), 286 Mich. 654.

Remanded for entry of an amended judgment which shall reflect the line between plaintiff and Marx as herein specified. In all other respects, the trial court is affirmed. Plaintiff may recover costs.

All concurred.