Deal v. Cooper

94 Mo. 62 | Mo. | 1887

Black, J.

In 1873, the plaintiff, Henry J. Deal, conveyed to James A., and the defendant, Andrew F., Cooper, a parcel of land by the following description: “Commencing ata stake fifty feet south of the centre of the line of the Cairo, Arkansas & Texas Eailroad, where said railroad crosses the section line between sections 22 and 23, on the west line of the northwest quarter of southwest quarter of said section 23; thence south two hundred and fifty feet, more or less, with the section line to a stake; thence east, with the line dividing the northwest quarter and the southwest quarter of the southwest quarter of said section, 23, six hundred feet, more or less, to middle of northwest quarter of southwest quarter of said section 23 to a stake; thence north to the south line of the right of way of said Cairo, Arkansas & Texas Railroad; thence in a southwesterly direction along the right-of-way line aforesaid, to the place of beginning, being in township 15, north of range 10, east.” This deed, on its face describes about four acres of land. The plaintiff then owned six acres to the south of these four acres, which were occupied by tenants. Subsequently, the defendant got possession of the ten acres and set up title thereto, under the above deed, and the plaintiff brought this action of ejectment for the six acres.

The first call in the deed, it will be seen, is from the railroad south two hundred and fifty feet, more or less, to a stake; and the second call is, thence east, with the line dividing the northwest quarter and southwest quarter of southwest quarter of said section, etc. When we apply the description to the land it is shown that the first call of two hundred and fifty feet does not go to the dividing line between the two forty-acre tracts by four hundred and ten feet, which four hundred. and ten feet is the west line to the six acres ; but, because the second call is east “with” the dividing line, the defendant’s claim is, that the first eall must go to it. The call for the stake is a call for a monument, and there is no pretense that this stake was planted in the dividing line between the two forties, or at any other place than just two hundred and fifty feet south of the railroad. It is manifest that when the second call says, “east with,” etc., it means “east parallel with,” etc. When the deed, applied to the subject-matter, shows a manifest omission in the description, and there is sufficient data furnished by the deed to supply the omission, the omission will be supplied’ by construction. Hoffman v. Riehl, 27 Mo. 554; Burnett v. McCluey, 78 Mo. 676.

The defendant complains that the court admitted parol evidence of what the grantor intended to convey, but the judgment is so clearly for the right party on the face of the deed and the plat of the land, which is conceded to be correct, that any such error ought not to operate as a reversal.

The judgment is affirmed.

Sherwood, J., absent; the other judges concur.