Bill in Equity.

The allegations of the bill are in substance as follow : —

In April, 1832, Ephraim Watson was owner of the west half of lot No. 20. He then gave one Hamilton a bond to convey the same to him on the payment of a stipulated sum.

Subsequently, but at what time the plaintiff is ignorant, Watson, by the consent of Hamilton, agreed by bond to convey to James McNally, five acres off- of the south end of said west half of the lot, but the plaintiff does not know that the writings between Watson and Hamilton were altered.

Thereupon McNally went into the occupation of the five acre lot; cleared it up, fenced it, and erected valuable buildings upon it; and Hamilton went into the occupation of the remainder of the said west half of the lot.

Hamilton, not being able to pay for the remainder of said west half without assistance, induced Calvin Copeland to pay Watson, in whole or in part; and it was agreed between the three, that Watson should convey the same to Copeland, who should hold it hi trust for Hamilton, and convey it to him on receiving the sum by him advanced and interest. Thereupon Watson, on the 29th of July, 1840, gave Copeland a deed of the whole of the west half of No. 20, including, by mistake, the five acre lot. Copeland held the deed in trust for Hamilton, who continued to occupy the same, except the five acres, and he did not occupy or pretend to have any right to the five acres, but the same was before and after in the occupation of McNally, under the bond given him by Watson.

Copeland afterwards conveyed the west half of No. 20 to Hamilton, but Hamilton did not claim nor occupy the five acre lot, well knowing of the mistake, and not intending to take any advantage of it.

On or about the 14th June, 1847, Hamilton, for a stipulated sum, agreed to convey to the defendant Rogers that part of the west half of lot No. 20, which he really owned, not including the five acres. The boundaries were pointed out to Rogers, and were well understood by him. Rogers neither bargained for, nor paid for, nor understood that he was to have any part of the five acre lot. But the deed from Hamilton to Rogers, dated 14th June, 1847, and recorded, embraces the five acre lot, by accident and mistake.

McNally, not being able to perform the condition of his bond, abandoned the land, and Watson gave a bond of the same to one Hiram Watson, and afterwards died. Said Watson’s administratrix, being duly licensed by the Judge of Probate, conveyed the five acres to Hiram Watson, he having performed the condition of his bond.

Hiram Watson then conveyed the five acre lot to the plaintiff by deed.

Rogers conveyed the whole of the west half of lot No. 20 to the other defendants in mortgage or as security for money borrowed. The other defendants seek to derive no advantage from the mistake, and have been defaulted. Rogers fraudulently intends to hold and convey away the five acre lot.

The deeds were all duly recorded.

…

Citation profile

How this case has been treated — in progress