
    No. 61
    SCMITZ et al v MARVIN et al
    No. 18852.
    Supreme Court.
    Pending in Supreme Court, Dock.
    Dec. 2, 1924.
    2 Abs. 770.
    CONVEYANCES—When there is a conflict between distance and monument to determine boundaries of land, which shall control?— Where description in deed is adverse to intention of parties, which shall prevail?
    Attorneys—T. A. Conway, for Schmitz; Find-lay & Myers, for Marvin; all of Elyria.
   In 1912 Schmitz conveyed to Marvin a tract of land. In 1920, when the mortgage had been paid and shortly before execution of the deed, a survey was made which gave Marvin an additional ten foot strip of land from the farm of Steinmetz, the adjacent owner. This owner brought suit to evict Marvin claiming he was unlawfully kept out of possession by Marvin, and in this action was successful.

This instant action was then commenced, in the Lorain Common Pleas, by Marvin against Schmitz, in which he sought to recover damages on covenants of warranty in the deed from Schmitz to himself. The Common Pleas held that Marvin was entitled to recover; deciding against the request of • Schmitz, who then filed an answer alleging a mutual mistake, and asked that the deed be reformed to conform to the intention of the parties. On hearing the equitable question thus raised was decided against Schmitz in the lower court, and the Court of Appeals affirmed this judgment.

Schmitz then, on leave, filed a second amended answer and reply and the case being tried to a jury, resulted in a verdict in favor of Marvin. The holding of the Common Pleas was again affirmed by the Court of Appeals.

The description of the deed states the depth of the land to be, from the front, 219.5 feet, to the center line of a certain road, and “passing through an iron pin set in the westerly line of the said road.” It is claimed that the pin is but 209.5 feet from the starting point of the line, thus depriving Marvin of a strip ten feet he is entitled to, if it is accepted as the west terminal. Marvin claims that upon execution of the deed both parties agreed that the pin should be the boundary point, and that later, after the survey, it was claimed that the iron pin should be ignored, because it comes into the case merely as a point on what the parties thought was the true boundary line.

The principal issues for the court to determine are:

1. When, in a description in a deed, two monuments are mentioned, which shall take preference and become the controlling monument?

2. When grantors to a deed intend to convey only a certain tract of land, but by mistake in designation cause to be included a part of an adjoining farm, in the deed of its execution at the time, I should such strip be included ?  