114 Mo. 486 | Mo. | 1893
This is an action in ejectment for the recovery of lots 1 and 2 in block 6 in the original town of Lamar, Barton county. The defendants are in possession of the whole block 6. The answer was a general denial. The case was tried by the court with•out a jury; the finding and judgment were for the defendants, and plaintiff appeals.
The plaintiff is the only child and heir-at-law of Nathan Bray, deceased. It seems that on the plat of the original town of Lamar, block 6 was divided into two lots of equal dimensions by a line running north and south, and that these lots were numbered 1 and 2 respectively. That during the war the town was burned,, and either then or before the original plat and the record thereof was destroyed, and there is no record evidence as to which half is lot 1 and which half is lot 2. The plaintiff introduced conveyances tending to show title in Nathan Bray, deceased, to lot 1 in block 6, and parol evidence tending to show that said lot is the east half of said block.
The defendants introduced evidence tending to show that lot 1 in block 6 is the west half of block 6, and to show title thereto under and by virtue of a sale and conyeyance made by the administrator of Nathan Bray, deceased, to Crenshaw and Rundell, and mesne conveyances from them to defendants.
“1. The court declares the law to be that in this cause the defendants are estopped by their administrator’s déed introduced in evidence from denying that lot two (2) and the west half of block six (6) in the original town of Lamar, Missouri, are one and the same identical tract of land.
“2. The court declares the law to be that under the evidence the finding must be for plaintiff as to lot one (1), block six (6) described in the petition, andón behalf of the defendants as to lot two (2) in said block, six (6).”
The court refused to so declare, and at the instance of the defendants gave the following declaration:
“1. The court finds from the evidence that lot one (1) in block six (6), and the west half of block six (6) are one and the same piece of land, and declares as a matter of law that the administrator’s deed introduced in evidence operated to convey the title to the west half (1-2) of block six (6).”-
The land in controversy was described in the administrator’s deed as “lot 2, block 6, or the west half of block 6 in the town of Lamar.”
I. There were no exceptions saved to the rulings of the court below on the admission of evidence, and the only questions presented by the record for review here arise upon the declarations aforesaid. One of those questions is the finding by the court as a matter of fact that lot 1 in block 6 is the west half of that block. Counsel for the plaintiff contend that the trial court committed error in so finding, and the whole of the argument in their brief is devoted to the support of the contention, that the preponderance of the evidence is that lot 1 in block 6 is the east half of lot 6. A careful reading of the evidence fails to satisfy
II. The deed of the administrator was duly executed and acknowledged, recites the order of sale, the appraisement of the premises, sale made in pursuance of the order, report of sale to the probate court, the approval of the sale by the probate court, and the payment of the purchase money (as required by statute, Revised Statutes, 1879, section 169), was evidence of the facts therein recited and was effective to convey all the right, title and interest to the said Nathan Bray to the land therein described. See. 172, stipra..
An attempt was made to impair the validity of the deed by introducing in evidence several orders of sale of the probate court and a petition for an order of sale by the administrators. The order of sale recited in the deed was an order made at the April term, 1880, evidently a renewal of a previous order made August 21, 1879, which had not been executed. The original order was made on the petition of the administrator after due notice as therein recited, and upon the finding of the court that the available personal property of» the deceased was insufficient to pay his debts, and among a long list of the lands of the deceased ordered to be sold was the land in question described therein as “lot 1, block 6, in the town of Lamar, Barton county.”
The petition which the counsel introduced presumably for the purpose of impairing the validity of this order did not describe the land asked to be sold, nor was it necessary that it should do so. Revised Statutes, 1879, sec. 146. The description of the land is obtained from the exhibits to be filed with the petition, Sec. 147, supra-, and although after the lapse of years
There is no question but that Nathan Bray owned but one lot in block 6, and that the lot he owned was a half of the block, and that it was intended by the administrator’s deed to convey that lot. The first difficulty was in locating it. Inquiry to identify the thing to satisfy the description contained in a written instrument is always in order. Skinker v. Haagsma, 99 Mo. 208. Upon this inquiry the court found that the lot he •owned, which was lot 1, was the west half of block 6; and also found that the administrator’s deed contained two descriptions of the property to be conveyed, •one true and the other false; one applicable to the land which he did own and one applicable to land which he •did not own.
' In such case the law seems to be well settled. “If the deed contains two descriptions, one correct and the other false in fact, the latter should' be rejected as surplusage. Where one of two different descriptions applies to land to which the grantor had title, and the ■other to land which he did not own, the former will be taken as the true description and the latter will be rejected as false. If sufficient remains after rejecting a part of the description which is false, the deed will take effect.” 2 Devlin on Deeds, sec. 1016. Lot 2 was .a false description in fact in the deed, which being rejected left a true description of the land—“the west .half of block 6”—identical with the land described as