February 19, 1881, Henry N. Walker conveyed to complainant Wiley. The auditor general, by two separate deeds, conveyed the same premises to complainant Judson, October 20, 1880, and December 7, 1880, respectively, for the taxes of 1877 and 1878.

In the fall of 1881, one of the complainants, Mr. Wiley, visited the defendant, and exhibited to her an abstract of title, and pressed for an adjustment of complainants' claims to the land. Subsequently the complainants executed a deed, which both they and the defendant sup posed to be a deed of the land in question, running to defendant, and sent the same to N. E. Thomas, an attorney in Port Huron, to negotiate a settlement. Thomas and defendant agreed upon a price of $250, which was secured by mortgage running 10 years, with interest at 7 per cent. In the mortgage the same mistake was made describing the land as in the deed. In May, 1882, defendant paid $25 on the mortgage, and in January, 1883, $17. When the mortgage fell due, no further payments having been made, complainants foreclosed by advertisement. When the title became absolute in them, there were some negotiations between the parties, complainants offering to accept the amount of their bid, with interest. During these negotiations, the error in the description common to the deed and mortgage was discovered. The negotiations were terminated, and complainants filed this bill, asking to have the deed and mortgage reformed, and for a foreclosure of the mortgage. The circuit judge dismissed the bill, and complainants appeal.

Defendant claimed that she made this settlement hurriedly, and under threat that the property would be sold unless a settlement was made within a week, and that she had no opportunity to investigate complainants' claims to the title. But we are satisfied from the testimony that no fraud was practiced, and that she had ample time to investigate. The circuit judge denied relief, however, on the ground that, the lands not being correctly described in the conveyances which passed

between the parties, the contract rested in parol, and that, as the complainants have not done anything which they would not have done or omitted to do anything which they would have done but for the mistake, they are not entitled to relief in equity. The circuit judge seems to have relied upon Climer v. Hovey, 15 Mich. 18, to sustain this holding. That case was a case of an executory contract, and the view which the circuit judge seems to have followed was adopted only by Mr. Justice CAMPBELL, Justices COOLEY and CHRISTIANCY expressly reserving the question, and Chief Justice MARTIN concurring in the result. In case of an executed contract, however, the great weight of authority is that equity has full power, on the ground of mistake alone, to correct a mistake in the description of land, even though the statute of frauds requires such conveyance to be in writing. In 2 Pom. Eq. Jur. § 866, it is said:

"It is settled by the great preponderance of authority that a deed of land may be thus corrected by enlarging its scope, extending its operation to other subject-matter, supplying portions of land which had been omitted, making the estates conveyed more comprehensive, as changing a life estate into a fee and the like, and by enforcing the instrument thus varied against the grantor."

See, also, Conlin v. Masecar, 80 Mich. 139; Kimble v. Harrington, 91 Mich. 281; Wat. Spec. Perf. § 372.

It is contended by defendant that as the circuit judge found that the only title which the complainants had was a tax title for unpaid taxes, and as it was the duty of the administratrix to pay the taxes, she could not acquire a title by tax deed, and that, therefore, the mortgage conveyed no interest. We think this contention should not be allowed. The conveyance and the mortgage should be treated together, and whatever title she acquired is subject to the mortgage. The court will not undertake to determine what title complainants may acquire by foreclosure. That question may arise later, between the heirs of Jacob Miller and the complainants. But, upon

this record, we think the complainants clearly entitled to a reformation of the instruments and to a foreclosure of the mortgage.

The decree below will be reversed, and a decree entered in this court in accordance with this opinion, with costs of both courts to complainants.

The other Justices concurred.

WHITE v. PEABODY.

1. BOUNDARIES-EVIDENCE OF LOCATION-TOWN PLATS-RESURVEY. The boundaries of a town lot, when in dispute, will be determined from the lines actually established upon the ground, agreed upon by the adjacent owners, and long acquiesced in by them, rather than from a recent survey, dependent upon a different construction of the plat.

2. TRESPASS-EVIDENCE-LOCATION OF BOUNDARY.

The rule that the plaintiff in trespass qu. cl. is restricted in his proof to the lands described in his declaration cannot be invoked to exclude evidence of the true location of a disputed boundary.

3. BOUNDARIES--ACQUIESCENCE.

Acquiescence in a boundary line fixed by agreement need not, to be effectual, have continued for a period equal to that prescribed by the statute of limitations.

4. NEW TRIAL-DISCRETION OF COURT.

The denial of a motion for a new trial upon the ground of newly-discovered evidence will not warrant a reversal as for an abuse of discretion on the part of the trial court where the testimony relied upon was merely cumulative.

Error to Monroe: Kinne, J. Submitted June 13, 1895. Decided July 2, 1895.

Trespass quare clausum fregit by Horace White against Lucien V. Peabody. From a judgment for plaintiff, defendant brings error.

Affirmed.

Randall & Corbin and E. R. Gilday, for appellant.
Elam Willard and C. A. Golden, for appellee.

MCGRATH, C. J. Plaintiff brought trespass in justice's court, describing his close as "Lot No. 10, and the adjoining portion of lot 12, occupied and owned by said plaintiff, in the Pusey plat in said village, and being the lot and land occupied as a homestead by said plaintiff." Defendant gave notice:

"That the title to lands will come in question, and that, before the committing of the said supposed acts complained of in the plaintiff's declaration, the village of Dundee had purchased a strip of land on lot 12 for a highway, and that whatever of the acts of the defendant complained of by the plaintiff were committed under and by the authority of said village."

Upon the trial in the circuit court, plaintiff disclaimed all interest in lot 12.

The plat was recorded in 1869. A section of said plat, excepting the dotted lines and the words "Proposed Street," and omitting figures denoting distances, is as follows:

106 MICH.-10

The land in question is the northerly portion of the proposed street. The dotted lines in lots 5, 6, 8, and 10 represent the lines of actual occupancy of lots 5, 6, and 8. Pusey conveyed lot 8 to one Snyder in 1870, and, within a year or two afterwards, conveyed lot 10 to one Collins. Snyder testified that he bought lot 8 22 years ago; that Pusey at that time showed stakes on the north and south lines of his lot; that he then planted cherry trees upon the lines indicated by the stakes; that the lines so indicated are the dotted lines upon the plat, and that he occu.