Webster Whitaker, Appellant, v. Benjamin Whitaker, Executor, etc., et al., Respondents

Webster Whitaker, Appellant, v. Benjamin Whitaker, Executor, etc., et al., Respondents. (Submitted March 6, 1873; decided June term, 1873.) This was an action brqught to reform a deed executed by Benjamin Whitaker, deceased, to plaintiff, by including therein a piece of land alleged to have been omitted by mistake. , Benjamin Whitaker, defendant’s testator, owned a large tract of land in Delaware county, bounded southerly by what was called the “ Garlow line.” With a view of dividing the same between his three sons, Benjamin, Joseph and Daniel, he employed a Mr. McClure, a surveyor, to divide the same, instructing him to include all the land to the “ Garlow line.” McClure made the survey and division, and each son took possession of his portion so allotted. The part assigned to Joseph was supposed to adjoin the “ Garlow line,” and contained 202 acres. It was conveyed to Joseph’s wife by metes and bounds, without referring to the “Garlow line,” and as containing 202 acres, more or less. It was subsequently reconveyed to Benjamin, who conveyed it to plaintiff oy the same description. About a year after this, upon a new sm-vey, it was discovered that McClure had made a mistake as to the southerly line; that instead of following the “’ Garlow line ” he had run upon another line nearly parallel, leaving fifty-two acres of land between that and the “ Garlow line.” The plaintiff claimed this fifty-two acres,.and asked to have his deed reformed so as to cover it. The referee decided in favor of defendants. Held (Eott, Ch. C., and Gray, 0., dissenting), no error; that the fifty-two acres were not divided; and, the title remaining in defendant’s testator, that all the land plaintiff ’contracted for and intended to purchase was the portion allotted to Joseph; that although both the parties supposed that the line ran to the “ Garlow line,” they) or at least the deceased, supposed that line and McClure’s to be identical, and did not know that he owned the extra fifty-two acres, and that plaintiff had no equitable right to this surplus. S. W. Fullerton for the appellant. Alex. Cumming for the respondents. [MAJORITY — Lott, Ch. C., Earl, C.,] Lott, Ch. C., reads for reversal. Earl, C., reads for affirmance. For affirmance, Earl, Johnson and Reynolds, CC. For reversal, Lott, Ch. C., and Gray, C. Judgment affirmed.