882
FEDERAL REPORTER.
KELLOGG"'. CHAPMAN.
(OWeuit Oourt,lJ. Ne1Yra8ka. May 9, 188M \ 1.
Defendant claimed that a portion of the purchase price of certain property (. <,Aeld by plaintUf,lI.ad pot belln paid, buHt appeared that: defendant had for a . \',' series of 22 years made no effort to colIectsitid balance. Held, that defendant's , ,inaction\was sufficientlysigniticant to listablish that no such' balance of pur. ".chase money remained unpaid. . ,: "
a.
',,' It was discovered tliatbwlng to a mistalte !n the lot, a portion" forming- a Ml'1,'f/W, g,ore six t,o ,ten feet, 10 Wid,tb, ha, A be,e,n, c,onv,eyed not a street. It In a deed. This POrtio111ay between the rest of thll Jqt , appeared that meallur¢ments correspondin&, with the in the plat w;ere useilin the deed; the defendant years'" assert any tItle to the omitted portion; and that his JIlade large and had regularly paid the taxes. It Improvements upon a part of the was also in evidence that the grantor had admitted that he supposed hellad conveyed the whole lot. Held, that., the circumstancelland the evidence sufficiently established the intention to convey the whole lot, and that the court would reform the deed. J ' SAME-LACHES.
EQUITY-REFOIW4TIQNOll' DEED.
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, In Equity.
Bill Thisis 8.
deed. I
In 1880 one John H. Kellom wa,sthe owner of'4'() acres situated in the Om,aha., city, ,dividjngth 13 tract into nine lots; of various.formsand,sit.es, one of which IQt sUPPol'led to contain 16, acres. On the north side of the lot was laid out a street named, Farnainstreet, ;which:was an of one of the principal streets, of the oity. According to the plat,the bQundarie,s of said lot,were as follows:',' ., '" at the./)Qrtn-east corner of said :Iot on Farnam:sbl'oot', running west five hundr,ed and feet: ,thence twenty-n,lne west eightbundred and tlfteel)fe,et; south, on the line oithe lands first above described, four llundred and ninety-seven tothe south-east corner of said lands; thence east, on 'south line of' said ,tract and on tM line of the government survey, thirteen hundred and seveJi't.yLMefeetj llOrth fi ve hundred feet,! to the place of beginnirtg. " j
are these:
BREWER,
J.
bill tp correct a,mistakein.a. deed. ' '"
The facts
Nebraska, and described as follows, to-wit: Commencing at the south-west
The same year Kellom and wife conveyed by deeii iliid: lot 6 to one Houston Nuckolls, and on the twelfth of November, 1861, the said Nuckolls and wife conveyed the property to defendant. On the thirteenth of July, 1863, the defendant conveyed the west 10 acres to William P. Kellogg, hy deed. whose description was as follows: "All that piece of land situate in the county of Douglas, and territory of
JEquity will relieve against a mutual mistake in regard to something material to the transaction. Fritzler v. Robinson, (Iowa.) 81 N. W. Rep. 61, and note: Griffith v. County of Sebastian, (Ark,) 8 S. W. Rep. 886; Muhlenberg v. Henning, CPa.) 9 At!. Rep. : 144; Henderson v. Stokes, (N. J.) 8 At!. Rep. 718. See, also, Guilmartin v. Urquhart, (Ala.) 1 South Rep. 897. and note; Pearce v. Pettit, (Tenn.) 4 S. W, Rep. 526.
KELLOGG'll. CHAPMAN.
883
corner of lot No. six, (6,) irrthe Capitol addition tbthecityof Omaha: thence running ealilt eight hundred and sixty feet along the sOl\th line of said lot No. six; thence .running due north five hundred and feet to the north line of said lot six; thence running west forty-five feet along the said north line of said lot six to the east line of lot No. five, (5,) in said Capitol addition to the city of Omaha; thence running south along said east line of said lot number five twenty-nine feet; thence running west along the north line of said lot number six eight hundred and fifteen feet to the north-west corner of the same; thence running SQuth along the west ,line of said lot six, fo:ur hundred and ninety-seven feet to the place of beginning; supposed to contain ten acres niore or less." On the 'fourteenth of November, 1863, the defendant made a further conveyan<Je to said Kellogg, the description in which reads as follows: .. Ail' that certain piece of ground situate in the county of Douglas, 'and territory of Nebraska, to-wit: .Beginning at the south-east COrner of lot numthe Capitol addition to the cityof Omaha; thence running ber six, north five hundred and twenty-six feet; thence west five hundred and fifteen feet, then'¥) five bundred alld twenty-six feet; thenc'e east five hundred and fl:et, to the pllWe of beghming, containing six and 22-100 acres mor:6or less." ' It will be noticed in the first. deed to Kellogg that the east line is de;scribed thus: "Thence renning due north five hundred and feet to the north line of said lot six," while in the last deed the description is; simply "running north five hundred and twenty-six Beyond doubtthefil'st deed conveyed the entire western part of the loti and, the' qtiestion.is. whether the last deed: was intended to convey the eastern and remaining portion of the lot. In :1:885 it was discovered that the' east'l1ne of:said lot,beginning at the south-east corner of said lot and l'tln:ning north to Farnam street, was more than 526 feet in length, and that between the property, as described in the last <leed to Kellogg'" Farnamstreet j was a narrow gore 6 to 10 feet in width on the east line; and narrowing as it went westward. The question therefore presented is whether the 'parties, by this last deed, intended to convey the .entire eastern portion of the lot extending north to Farnam street, orsHnply so many square feet of ground as indicated by the description, leaving unconveyed 'and as the property of defendant this narrow gore along the line of Farnam street. Upon this question the testimony of the two immediate paTties, Kellogg and Chapman, is absolutely and unqUalifiedly contradictory. Kellogg testifies positively the intentionWas,to purchase the entire amount, and Chapman as positively denying'auy stich intent.' Their testimony, thus contradictory ,may fairly be put one side, and the question solved upon the other testimony, and from this there can be little doubt as to the truth.. , In the :fil.'st place, the use of measurements, exactly corresponding with the measurements upon the original plat, is very potent evidence of an intent'tal convey allthat,acoording to those measurements, was embraced within the lot. In the second place, no sane man would purchase sueha:body of land, leaving such a narrow gore between thatland · and Ii. pl'lncipaJ'street) and no 'honoraple man would make a conveyance
884
intending tori:Jserve to himself·such a narrow gore SO 'situated, without a .Clearexpresilibn of an intent to so reserve. I do riot mean to charge upori the defendant in this case dishonorable conduct in the making of this defense. ,It may well be that an honorable man, feeling himself aggrieved, as defendant undoubtedly does, by virtue of' the transactions had between Kellogg and himself in respect to the entire lot, should seek to take a4vantage of what appears to be a technical defect in the deeds, to obtain the compensation which he feels himself entitled to for the entire property; but it cannot be that Itn honorable tmul, su.,ch as I have no reason to doubt defendant is, could in 1863 have Olltde stIch a deed, usiilg:the'description and measurements expressed upon the original plat; and· with' no further. words of explanation, with ap intent to not lot, but t<;>, reserve .to such a. parrow gore of no value itself, but only as cutting off cop.nection the. property and a principal street of the· city., .and that,. the, which acce&sto and from the propertywaB'chiefiy to be had,,,Phird, the sileilOe' ,ofthedeJfendant and his failure 'fof 22 years to' assert any title to ihis gate;" in view of the large improvements made upon Ii part of the tract, the constant payment of taxes by his grantee and subsequent grantees,and:the occu'pationhy a iessee,isvery. strong, ,evidence that he supposed ne :ha!d, and had intended to convey the entire lot. Fourth, the testhnoriy of GeorgeB.Lake; a disinterested witness, a gentleman of high character, one who for 17 years was an honored member of the supreme court of the state, one whose examination first disclosed the mistake, and who went to the. defendant to obtain a quitclaim. is entirely satisfactory. To him the defendant admitted that he supposed he had conveyed all oilot 6. From these various matters there can be no doubt that the parties were negotiating for the entire balance of lot 6, and that the intention was by the deed to convey such balance. There was a mistake in the description,4nd such a mistake asa court of equity will always correct. Further, defendant insists that he never received the stipulated price, .and therefore there should be no decree correcting the, mistake. Both partil::s agree that the price was $600. There was a judgment, which was a lien upon the' land, amounting tOll. little over $300. U is not disputed but that Kellogg paid at the time about $300 in ca.sh. Kellogg testifies that he was to pay, and did pay, such judgm.ent, making the amount in c.ash paid by him inelCcess 0£$600. Defendant testifies that Kellogg was to obtain an assignment to him, Chapman, of·such judgment, in order that he might obtain its collection from the property pf one of the judgment debtors other than the one who had held and conveyed to him this land. The deed,'as produced, recites a consideration of $600 and purports to be a conveyance of the property SUbject to the lien of this judgment. Kellogg testifies that these last words were interpolated after tbedeed had been executed and delivered, and his testimony finds some' little, support in ,the uncertain recollection of Byron Reed, who was register of deeds, Defendant denies any such interpolation. Kellogg testifies that he paid this judgment,and received a re-
in
BERNHEIM
'U.
BIRNBAUM.
885
ceipt from plaintiff's attorneys, and his testimony in this respect is supported by that of one Gilbert, an attorney, who saw and used the receipt in the trial of a subsequent case. Defendant testifies that years after he obtained an assignment of this judgment,or rather an order for its process, ftom one of the plaintiff's attorneys, and subsequently secured its collection and satisfied the judgment, ,and his testimony finds support from the records of the case. Kellogg's testimony as to the agreement . to obtain an assignment is indefinite and nnsatisfactory. Did defendant receive payment of the full consideration? I must say I think the question is a little doubtful. But these things must be noticed: It does not appear what, if anything, defendant paid to obtain the control of this judgment. Kellogg remained for a year or two the and for a series of years the owner of a owner of this entire defendant· made large 'undivided' interest in it. During all' those no to collect from Kellogg, or from this property, that which he now cIailllil was'the unpaid portion of the price.. Such inaction is very significant. And while I do not think the question entirely clear, it must be adjudged that he has failed to prove this affirmative defense. Hence, as, the' mistake in the description unquestionably existed, the plaintiff as prayed for. " i'" "
BERNHEIM and others
BIRNBAUM and another, Assignee.
(Oircuit Oourt, 8. D. Georgia, E. D. April 28, 1887.)
1.
COURTS.-..JuRISDICTIONAL AMOUNT-DISTINCT DEMANDS.
Under the act of March 8,1887, an action may be maintained in the United States circuit courts where the matter in dispute exceeds. exclusive of interest and costs, the Bum ,and value of $2,000, although itis made up of distinct demands of less value than $2,000, and although the plaintiff may have-acquired such demands by assignment.
'2. SAME-FRAUDULENT CONVEYANCES-STATE STATUTE.
Where a statute of a state provides that in the'case,of fraudulent assignmen,ts a court of competent jurisdiction is authorized to declare the assignment void, although thll assignee is not shown to have notice of the fraud, the equity courts of the United States having jurisdiction can enforce rights under such statute. Jaffrey.v. Brown, 29 Fed. Rep. 476, followed. (8yllabu8 by tMOourt.)
InEquity. Garrard & Meldrim, for plaintiffs. (Jhislwlm& E1"'W'i:n, for defendants. SPEER, J. This bill is brought by the. complainants against the defendants, alleging this state of facts: The defendant Birnbaum carried {)n business in the city of Savannah. He was insolvent. He bought large quantities of goodson credit. A very short time' preceding his