Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-12
SUPREME COURT.
FULL TEXT OF DECISION FILED
YESTERDAY.

FULL TEXT OF DECISION FILED
YESTERDAY.
Af1i Gain, appellant as. T71onaas Murphy and
Bridget Murphy. respondents
OPINION.
The facts in this case as found by the court
below are that, on July 10th, 1871, the defend
ants (Nho are husband and .wife) and the plain
tiff entered into a prol agreement, whereby de-
PENDANTS agreed to sell and convey to plaintiff |
and plaintiff agreed to purchase of defendants |
for the price of FIVE hundred dollars a parcel of |
land 40x1oO feet to be selected by the parties |
out of a larger tract of land owned by defend |
ant, Thomas, and situated in the city of st. |
Paul. From the location of the tract and of |
certain streets 1T was supposed by the parties, |
that a street called Melrose avenue might at
some future time be extended and opened by
the city across said tract. and as part OF the
agreement aforesaid, it was agreed that the
parcel so sold and conveyed by defendants to
plaintiff should be exclusive of Melrose avenue,
and that it should be so selected thatn part of
it should come within Melrose avenue when ex-
| tended and opened if ever In pursuance of
| their agreement the parties selected from the
tract mentioned certain parcel, believing that
| the same would be exclusive OF Melrose avenue
| if the same should be opened and extended as
aforesaid Plaintiff had said parcel surveyed
and thereupon on July 10TH aforesaid defend
|
of the same, and plaintiff having paid the pur-
chase money agreed upon took actual posses
| sion of the parcel and ever since has been and
now is in possession.
AT the time when the sale and conveyance
| We're made the city did not contemplate the
| opening or extension of Melrose avenue across
the tract mentioned, neither had any action
| been taken towards procuring such opening or
extension, and the parties did not and could
not then know that 1t ever would be opened
OF extended, or what portion OF the tract
| would be taken if it ever should be opened.
On April 18th, 1875, the city commenced pro
ceedings for the purpose OF opening said ave-
nue. across said tract of land, and such proceed
ings were thereupon had that before the COM
mencement of this action, the same was duly
opened and extended across said tract, and
across portion of the parcel conveyed as afore-
said to the plaintiff, and such portion has been
condemned by and the title thereof become
vested in ST id city. Until the summer of 1871
the parties did not know where the lines of
said avenue would run, or what land would be
taken therefor. Plaintiff made no objection
to the description of the land conveyed to
her as aforesaid until sometime in the summer
of 1877, when she as:ertained thata portion Of
said parcel was taken by said avenue. Upon
this state of facts the court below came to the
conclusion that the plaintiff was entitled to no
relief.
The plaintiff insists that she is entitled to
have the deed reformed as respects the descrip-
ton of the premises conveyed by it, or to have
the agreement entered into between her and the
| defendants specifically performed. When 4
deed is reformed as respects the description OF
the premises conveyed by it, it is upon the
5 ground that the description is not what the
. parties intended If the description is that
which the parties intended it to be- it needs NJ
reformation, and none be granted. Tho
application OF this rule disposes of the plain
tiff's claim of reformation in this case. By The
e ff,Se
lect parcel of land no part of which should
t fall within the limits of Melrose avenue wEel
extended and opened, it 1T ever was. twas not
certain that the avenue would ever be extended
: or opened or what portion of the tract out o.
! which the selection was to be made would b.
, occupied by it, it it ever opened. it
course, therefore, in case 1T should be extended
y and opened was matter OF conjecture. Upol
i this basis of understood conjecture a parce
was selected by the parties and conveyed to TIN
: plaintiff by the deed sought to be re
y formed. The result is that the description
a found in the deed, which is description of tn
, land there selected, is the exact description
which the parties intended. That the deed di,
not fulfil the expectations OF the parties, O
t either of them, is not important. 1t was mad
just as they intended to make it. The descrip
: ton was of the very land which the parties hat
y selected, butin making the selection they erret
=, in matter of rHre conjecture as to a futur
= event.
Il Such a state OF facts furnishes no ground to
e a reformation of the deed.
: The claim Of specific performance must ais
be denied. The parties did just what the
e agreed to do, and what they intended to dc
n They were to select certain parcel of LAM
! upon what was, as have seen, basis OF pur
y conjecture. They made the selection upon thi
II basis. and the plaintiff received a conveyanc
Al accordingly. The thing which they agreed t
. do, and intended to do is already performed
y and there is no occasion for any further PEI
Torrance.
.. The parties might have agreed that if tn
- avenue should be extended and openhd acros
IS the parcel selected and conveyed to the plain
e tiff then, and in that case thedefendant shoul
! convey to her other lands in lieu of or as a
!, equivalent for the land taken by the avenue
The agreement might then have been what tn
j. plaintiff supposes the agreement, which wa
:, really made to have been and if in other re
:, spects valid. the plaintiff might have been CT
IL titled to some such relief as she seeks in TIL
te action. But the case thus supposed, is entire
- ly different from the case actually presented
~ 1t is not altogether clear to whether tt
: plaintiff brief claims that in any event she
q entitled to have the deed rescinded and compe1
i, sation awarded her or not, il any such claim
- made no further argument can be needed
t, show its untenability. As to the newly di
Il covered evidence. it is apparent that it W;
wholly irrelevant, unless the complaint ";
amended As the court below declined to pc
j. NIT the complaint to be amended, and there
If no reason for supposing that it abused its di
= erection in SO doing it is evident that the M
p ton for trial, SO far as it was based upo
10 the newly discovered evidence properly d
:. MED.
This disposes of the case, the result beir
II, that the order denying new trial is afirme
al BERRY J.