DocketNumber: Docket No. 65
Citation Numbers: 146 Mich. 430
Judges: Alva, Blair, Carpenter, Grant, Hooker, Montgomery, Moore, Ostrander
Filed Date: 11/13/1906
Status: Precedential
Modified Date: 9/8/2022
I concur in the opinion of Mr. Justice Ostrander that the bill of complaint was not sustained by the proofs as to the averment that the contract was mutually intended to cover the sheds on the railroad land. I am of the opinion that the contract was intended to relate to real estate alone, and was not intended to convey any sheds not standing upon the land conveyed. While the complainant may have supposed that the sheds upon the railroad land were upon the land described in the contract, the defendant certainly knew that they were not, and I am not satisfied from the evidence that he intended to convey, or supposed he had conveyed, them by the contract.
I am satisfied, however, that the defendant intended to convey all of the land that he owned or supposed that he owned at the particular locality, including his interest in the so-called Warehouse alley.
Mr. Howard, who negotiated the sale, testified:
“When Mr. Cunningham spoke.about selling out, he did not say anything about lands or buildings or anything else, but just the whole proposition there, and my understanding was that he bought out the whole business.”
Mr. Fitzpatrick, who drew the contract, testified:
Defendant Cunningham testified:
“I didn’t just know positively whether Kinyon or whether Howard was going to have the whole of that lot or not, and so I just slipped down there, thought it would be better to know, maybe he didn’t want the whole of it, and I just slipped in and asked Kinyon if he wanted the whole lot, and I found out he did, and I went on over to dinner.”
Neither Howard nor Kinyon knew anything about the Warehouse alley nor that there was such an alley. Defendant Cunningham did know about the alley, and understood that it belonged to him by virtue of his title deed and the adverse possession of himself and his predecessors in title. He testified that when he purchased the lot:
“Why, they sold that Warehouse alley to me.
“Q. Oh, they sold the Warehouse alley to you ?
“A. Yes, sir.
“Q. Where is your deed of it ?
“A. Well, I will tell you; in selling that property he conveyed the idea that there was two rods there and an alley there, that by taking possession of it that I could hold and do business on it. * • * *
“ Q. .Then you didn’t buy it of the Stewarts ?
“A. Yes, yes, he said that I should have possession, told me to go and take possession of that. * * *
“ Q. You claimed to own it ?
“ A. See here; I calculated virtually that it was my property.
“ Q. Yes ?
“A. That is all there is of it — that is, that half of it.”
Shortly before the making of the contract in question Mr. Moore negotiated with defendant for the purchase of the property and went with him to look at the property and defendant showed him—
“As near as he could where the line was between the alley and the railroad ground, how much of the shed stood on the railroad ground, and spoke about the alley through there, but he said — I said to him, ‘ Maybe they
44 Q. And he claimed at that time to own this alley there ?
“A. Well, he said it would always go with that property; it had been used there so long, so many years, he said, it couldn’t go back to the city, he didn’t think.”
I think it fairly appears from defendant’s own testi- • mony that when he signed the contract he understood and intended that his interest in the alley would go with that property,” and that all the persons connected with the, transaction understood that the contract covered all of the defendant’s real estate at the particular place.
I think the decree should be modified in accordance with this opinion, and affirmed, with costs of this court to defendants.