Nisbett v. Milner
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Opinion of the Court
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Brooke, J.
(after stating the facts). In the foregoing statement of facts, we have said that it is, in effect, conceded of record that a mistake was made in the deed *343 from Daniel to Chester. If it should be urged by counsel for defendants that the admissions of counsel do not amount to such concession,.we have no hesitation in holding that there was a mistake in said deed. It is unnecessary to state at length the reasons which impel to this conclusion. A study of the instruments themselves, and a knowledge of the location of the house Daniel was deeding to Chester, will afford an absolute demonstration of fact.
. It is urged on behalf of defendant that complainants cannot maintain this suit to reform a deed, because they do not claim under the deed sought to be reformed. Complainants take the position that their bill is filed primarily to secure to them the right of redemption, and, incidentally, to remove certain clouds upon their title, and that equity having acquired jurisdiction upon one ground will retain it for the purpose of giving such relief as will dispose of the controversy, and in this view we agree. See George v. Light Co., 105 Mich. 1 ( 62 N. W. 985 ), and cases there cited; Hall v. Nester, 122 Mich. 141 ( 80 N. W. 982 ).
It is clear from the record that when Daniel F. Com-stock executed the mortgage to the Michigan Trust Company, in which was included this strip in dispute, he believed he was the owner thereof, and that in his deed to Chester he had conveyed title to the corresponding strip on lot 14, block 22.
It is equally clear that as between himself and Chester he had a right to file a bill to reform the deed to Chester, or to have it declared inoperative as to the strip in dispute. We have no hesitation in holding that this equitable right passed to the mortgagee, and from the mortgagee, through mesne conveyances, to the complainants. It may be said that such relief could not be granted to Daniel’s suit, unless he had given to Chester the land intended, and it is urged that these complainants are not entitled to the relief because it is not in their power to convey to Chester’s successors in title (the defendants) the corresponding strip on lot 14, *344 block 22. The answer to this claim is that Chester got title to the last-named strip by deed from his mother, dated July 12, 1899, she having taken title thereto, on the same day Chester got his deed. It is apparent, therefore, that the mistake was rectified, so far as it could injuriously affect Chester, but it was not rectified by Chester redeeding to his father the strip erroneously included in the deed to him. Had he done so, such title as he possessed would of course have immediately vested in the mortgagee.
It is argued by defendants’ counsel that complainants were not in possession of the strip, and that defendants were in possession; therefore, that complainants could not file a bill to remove a cloud upon the title — citing section 448, 1 Comp. Laws. We think the record shows a joint possession of the land in question, and, in any case, a party having an equitable cause of action, coming within any recognized rule of equity jurisprudence, may enforce the same in equity, whether in or out of possession. Rowland v. Doty, Har. Ch. (Mich.) 3; Jones v. Smith, 22 Mich. 360 ; Waterman v. Seeley, 28 Mich. 77 ; King v. Carpenter, 37 Mich. 363; Eaton v. Trowbridge, 38 Mich. 454 ; Cleland v. Casgrain, 92 Mich. 149 ( 52 N. W. 460 ).
In Rowland v. Doty, supra, the court said:
“ The jurisdiction of this court (exclusive of any statutory provision on the subject) to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up to be canceled, is fully established.”
It is claimed, and the learned circuit judge held, that:
“ Defendants George Milner and Jennie M. Milner were in actual and undisputed possession of the lands purchased at said tax sale for a period of more than five years from September 5, 1901, the date of the auditor general’s deed, and before the commencement of this suit, and, by reason thereof, the said sale became absolute.”
This we think was erroneous. The record shows that *345 defendant did not go into possession under the tax deed, but was in possession before he obtained his deed. That such possession as he had was joint with that of complainants, and that, although he had actual notice of complainants’ claim to the land, he served no notice to redeem upon them though he did serve such notices upon Chester W. Comstock and George Young, whose title he had then already acquired. Under these circumstances, his possession is no protection.
The decree is reversed, and a decree will be entered in this court, permitting complainants, upon repayment to defendants of taxes paid by them, together with interest thereon, to redeem from said tax deed, and setting aside and holding for naught the three instruments first described herein, so far as they relate to the lands in dispute.
Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.
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