Kowatch v. Darnell , 354 Mich. 197 ( 1958 )

354 Mich. 197 (1958) 92 N.W.2d 342

KOWATCH
v.
DARNELL.

Docket No. 43, Calendar No. 46,413.

Supreme Court of Michigan.

Decided October 13, 1958.

Fred C. Newman, for defendants Darnell.

DETHMERS, C.J.

Plaintiffs Kowatch owned a parcel of property and plaintiff Surine owned one abutting it on the north. Somewhat south was property leased by defendant Ray Darnell, Jr., and wife, Bessie. The defendant State highway commissioner held title to a strip of land bordering on the west the properties of plaintiffs and extending south to include an area immediately west of the piece leased by the Darnells. This strip was excess land, not needed for highway purposes, which the commissioner intended to sell. Plaintiffs and the Darnells desired to purchase it together. While there is dispute about it and objection to the admissibility of some of the testimony supporting the finding, we are in complete agreement with the trial court's opinion that the competent evidence establishes that the plaintiffs and defendants had reached an understanding, based on discussions between them and the commissioner's representatives, that the intention of them all was that the strip would be sold and conveyed in 3 parts, as follows: to Surine all of that portion of the strip contiguous to his property, to the Kowatches all of that portion adjacent on the west to their property, and to the Darnells that portion of the strip south of the Kowatches' south boundary line extended west. These 3 would-be purchasers engaged the services of one attorney to handle the transaction for them and he did so. After deeds had been executed by the commissioner and delivered to the attorney it was discovered that the descriptions therein did not conform to the intent of the parties as above set forth. The attorney gave the deeds to Darnell, Jr., who had them recorded. The deed to Darnells conveyed, in addition to that portion of the strip intended to be deeded to them, an additional 33 feet north of the Kowatches' south boundary line. The description in the Kowatches' deed included the remainder of the property west of theirs and a portion of the strip west of Surine's property. Surine's deed described only the northerly portion of the property intended to be conveyed to him. On the same day that the commissioner conveyed to Darnell, Jr., and wife, they, in turn, conveyed the property so deeded to them to his father and mother, the other defendants Darnell, who had furnished the money for the son's purchase in the first place.

Plaintiffs' bill prayed for reformation of the descriptions in the 3 deeds to make them conform to the above stated intent of the parties. From decree granting plaintiffs the relief prayed, the defendants Darnell appeal.

Defendants' contention seems to be that plaintiffs are not entitled to the relief prayed because the evidence fails to establish that any binding agreement ever was entered into between the plaintiffs and the Darnells. That is not a prerequisite. Each of the purchasers took with notice of what the others intended to buy and thought they were buying, which, in turn, coincided with what the seller intended to sell to each. When the commissioner conveyed to the Kowatches something other than he and the Kowatches intended that they should have, they could have maintained an action for reformation against him on the ground of mutual mistake. When the Darnells received a conveyance of the land which had been intended for the Kowatches, with full knowledge of the facts, they were in no better position to contest a suit for reformation than the commissioner would have been had he not conveyed to them. By the same token, after the commissioner conveyed to the Darnells by a deed containing an erroneous description, he could have maintained an action for reformation against them to recapture title to the parcel which he had intended to sell and thought he had conveyed to the Kowatches. By his conveyance to them the Kowatches succeeded to such right. Nisbett v. Milner, 159 Mich. 337.

The senior Darnells, for whom their son acted to all practical intents and purposes as agent in the transaction, knew of the intentions of all the parties, as well as did their son, and are no more in the position of bona fide purchasers than was he. Kinyon v. Young, 44 Mich. 339.

The Darnells claim the right to reimbursement in the amount which they allegedly paid for land required by the decree to be conveyed by them to the Kowatches. The record does not show that the Darnells paid for more than the land which was intended to be conveyed to them or that the Kowatches paid for less than that which was intended to be theirs. Darnells' claim in this connection is without support in the evidence.

Assignments of error as to the admission of testimony are without merit. If the questions objected to were not proper in form, as being leading and calling for conclusions, such defect was cured by subsequent questions and answers, and the substance of the answers was established by other proofs.

Affirmed.

KELLY, SMITH, BLACK, EDWARDS, VOELKER, and KAVANAGH, JJ., concurred.

CARR, J., did not sit.