Galland v. Jackman

By the Court, Currey, J. This action was brought to recover the possession of the second story of a brick house in the Town of Tehama, in the ' County of Tehama, and was tried by the Court without a jury. Both parties claimed the demanded premises from one J. M. Betts as the common source of title. The facts as they are found by the Court are in substance as follows, viz.: J. M. Betts was the owner of a lot of land in the Town of Tehama, and sold a portion of it to S. H. Depuy. By mistake the whole lot was described in the deed of conveyance instead of only the portion intended to be conveyed. This' deed was recorded. Depuy and Betts then entered into a contract, by which Depuy undertook to erect, upon the land sold and intended to be conveyed to him, a hotel, and upon the other portion of the lot a store. By this contract Depuy was to have the second story of the store building, to be used as a' part of the hotel. The contract was performed by Depuy. The hotel proper and the store were divided by a party wall, the centre of which was understood0 to be the dividing line between the store and hotel. The entrance to the second story of the store was through the hotel.

After the store had been erected and the hotel was in process of erection, the mistake in the conveyance was discovered. Depuy then conveyed by deed to Betts the land on which the store had been erected, making the centre of the •division wall between the store and hotel the line of boundary between the two parcels of land, and Betts, in pursuance and fulfilment of his contract with Depuy, conveyed by deed to Depuy the second story of the store. This deed bears date November 27, 1859, and it was first recorded.in April, 1862. The deed from Depuy to Betts .was originally dated the “twenty-seventh” day of November, 1859, but it appeared [84]at the trial that the word “seventh” had been partially erased and the word “eighth” written over it, followed by the figures 38 inclosed in a parenthesis. This deed was acknowledged on the 3d day of December following, and was recorded on the 8th of the same month. As recorded, the date of the deed appeared to be' of the 28th of November. After the hotel was completed Depuy leased it, except for about a month he occupied it himself, and from that time until the trial it was used as a hotel. The defendant was occupying it when this action was commenced. On the 1st of February, 1862, Betts conveyed by deed to the plaintiffs the land upon which the store was erected with the appurtenances. In this connection the Court finds that the plaintiffs had knowledge that Betts executed a conveyance of some kind to Depuy for the second story of the store, and it is also stated to be clear from the evidence that the two deeds of November, 1859, were intended, as a matter of fact, to be but one transaction; that is to say, that Depuy should reconvey to Betts that portion of the land which he had conveyed by mistake to Depuy, and Betts should convey to Depuy the second story of the store in pursuance of his contract to do so.