Adkins v. Quest

79 Mo. App. 36 | Mo. Ct. App. | 1899

SMITH, P. J.

description: metes and bounds. This is an action on a special tax bill issued by the board of public works of Kansas City for the construction of a certain sewer in said city. The tax bill describes the property which it is claimed is subject to the lien thereof as “The south 60 feet of the north 121 & 3-4 feet, more or less, of lot 4, Elournoy ' * Heights/’ an addition to Kansas City. The contention of the defendant is that said tax bill is void on its face for uncertainty in the description of the-property. Whether or not this contention can be upheld depeiids upon the construction to be given the descriptive-words used in the tax bill. The subdivision of the lot is in effect therein described by metes and bounds. Its length is the width of the lot of which it is a subdivision and its-width sixty feet. We think that it must be conceded, laying out of view the words “more or less” that a subdivision of lot 4 is accurately and definitely described in the tax bill, by metes and bounds; and this being so, it only remains to determine what effect, if any, shall be given to these words.

_._ tainty: quantity. Certainty in metes and bounds will include and pass all’ the lands within them though they vary from the given quantity named in the deed. Tbe mention of a given quantity after a certain description by me^eg an(j bounds is but a matter of description and does not amount to a covenant or afford a ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given quantity. A given quantity will be controlled by boundaries. The latter will operate as a limitation on the former. And where the statement of the quantity is qualified by the words “more or less,” or “containing by estimation” or the like, such words, if there is no admixture of fraud in the case, will be taken as a mere matter of description and not as the essence of the contract. A purchaser in such case takes the risk as to quantity. Kent’s Com. *466, par. 4; Noble v. Goggin, 99 Mass. 235. By such construction the apparent element of repugnancy or inconsistency is practically eliminated from the description. Wood v. Murphy, 47 Mo. App. 539.

——: quantityrmoreor iess. But the case we now have is one where no given quantity is named in the description. The subject is described by metes and bounds only, followed by the words “more or less.” Undoubtedlv the de- ° scription in a deed would be sufficiently certain to pass title unless rendered uncertain and inoperative by these words. Where a boundary line is described by admeasurement it will govern if there be no monuments, as here, by which to test its accuracy, although the distance be described as so many feet more or less. 3 Washburn’s Real Prop. 433; Tiedeman’s Real Prop., sec. 839. In Blaney v. Wright, 20 Pick. (Mass.) 62, it was in -effect declared by Chief Justice Shaw that, where a boundary line in a deed of conveyance is described as measuring a certain number of feet, more or less, and there is nothing in the deed itself, or in the subject to which it applies, to explain the description, the number of feet mentioned will be deemed the precise length of the boundary line. By this rule of construction the words “more or less” are rejected, .and thus the length of the boundary lines as stated in the description are left unaffected by them.

But it is insisted that the ruling made by tbe supreme court of this state in McCune v. Hill, 24 Mo. 570, supports tbe defendant’s contention. In that case it was said that the words “more or less” when used in a deed describing a common field lot of one of the usual dimensions could not be so construed as to include another common field lot. It-was further said in tbe course of tbe opinion in tbe case that “tbe words ‘more or less’ used in describing tbe front of a. lot mean no more tban they do in describing its depth. They mean that tbe lot conveyed may be in size more or less tban tbe dimensions given but not that they may be extended so-as to include a separate and distinct lot.” It is not intimated in tbe case that where boundary lines are stated to be so many feet “more or less” such a description is uncertain and insufficient to pass title to tbe land included therein, but tbe inference is clearly to tbe contrary.

Tbe defendant cites and relies on the case of Finelott. v. Sinnott, decided by tbe superior court of tbe city of New York, and reported in 57 New York Superior Court Reports, at page 57, where it was held that tbe description of a lot in a devise, as fronting on a certain street, “the same being about thirty feet wide in front and sixty-six feet in length” was not clear or definite and did not fix the dimensions of tbe subject of tbe devise. Tbe opinion shows that tbe question, involved in tbe case was decided without due consideration and certainly without discussion or reference to authority. In view of tbe principles and- authorities to which we have already adverted wo do not feel inclined to give it any weight.

tax bins: description. lien. Our conclusion is that tbe description here if in a deed would be sufficient to pass title and no reason is seen why defendant’s lot by that description may not be charged with tbe lien of a tax bill for an authorized public improvement and such lien. enforced by judicial sale. By tbis descriplion neither the defendant nor the public would have any •difficulty in identifying the property covered by it. We know of no principle of the law authorizing the assessment of taxes for general or special purposes or the enforcement thereof that would require a more definite description than that contained in the tax bill on which this action is founded. As far as we can see it meets every requirement of the law and should be accordingly held sufficient.

pleading: affirmajjyg dcfsnsc* delivery of tax'bui: The defendant further objects that the plaintiff did not prove when the tax bill sued on was delivered to the contractor. It stands admitted that no such fact was alleged in the petition or proved at the * trial. If th© action was not brought on the tax bill within three years after the delivery thereof to the contractor this was a defense that should have been pleaded in the answer to be of any avail. The plaintiff was not required, in order to make out his prima facia case, to prove the date of the delivery of the tax bills to the contractor. Charter of Kansas City, sec. 18, art. 9; Turner v. Patton, 54 Mo. App. 654; Veiths v. Planet Co., 64 Mo. App. 207.

Accordingly we shall affirm the judgment.

All concur.