Diggs v. Kurtz

| Mo. | Jan 28, 1896

Bkace, P. J.

This is an action in ejectment for a strip of ground ten feet wide and one hundred and forty-two and one half feet long, which plaintiff claims to be a'part of lot 312 in the town of Columbia, Missouri. Kurtz is the real defendant, the other defendant being his tenant. Defendants deny that the strip is a part of lot 312, and claim that it is a part of 311. The sole contention is as to the boundary line between lots 311 and 312.

The common source of title to them and lot 310 was Col. P. T. Eussell, who died in 1891. His executors, E. L. and W. T. Eussell, in October, 1892, made a public sale of these lots which consisted of a block of ground surrounded by streets and alleys, with an outside fence but no division fence, stake or mark to indicate the dividing line between the three lots. It was all in one inclosure with a dwelling house near the center. Before making the sale the executors ascertained by measurement the boundary lines of the three lots and drove stakes with flags on them, showing all the corners of lots 310, 311, and 312. The sale took place on the lots. Plaintiff and defendant Kurtz were present, standing on each lot as it was sold.

The auctioneer made the sale, commencing with 312, stating, “How much am I offered for this lot, commencing at this stake with a red flag on it, and running to this one, across to this one, and then across to this one, and back to the beginning,” pointing out the four stakes on the four corners of the lot to be sold. This lot was purchased by plaintiff. The auctioneer and parties including appellant then stepped across onto lot 311 and it was sold the same way, but before making the sale the auctioneer called attention to the fact that the house was on 311, and it was more valuable on that account. This lot and lot 310 were purchased by defendant Kurtz. After the sale, Mr. Grentry, appellant’s attorney, drew up the deeds to these lots, describing the one purchased by appellant “as lot number 312 in the old corporate town of Columbia.” No reference is made to the town plat or the flags or stakes.

Shortly after this, plaintiff and defendant Kurtz went over to the lot to see about building a partition fence. "Whilst over there they both agreed that they had'bought up to the line of the stakes and that line should be the dividing line between their lots. Railing to agree as to the kind of fence they should build, the respondent Kurtz built a fence of his own on his lot within about a-foot of the line of the stakes and flags, took possession of the property and built a coal house and outhouse upon the strip of ground now in controversy.

Plaintiff had an ex parte survey made which placed the boundary line of lot 312 about ten feet east of that line, and brought this suit for the strip. The case was tried by the court without a jury. Judgment for defendant, and the plaintiff appeals.

The judgment for the defendant is so obviously for the right party that we deem it unnecessary to answer at length and in detail the points urged against it. They will be all sufficiently passed upon in the few general observations following.

It appears from the evidence that at the time of the sale and the execution of the deeds to the purchasers in pursuance thereof, all parties, the executors, the auctioneer, and the purchasers were ignorant of the location of the true line. dividing and bounding these lots. To relieve this situation the executors caused the boundaries of these lots to be laid off and marked by visible monuments, on the face of the ground, so that each purchaser might know exactly the boundaries of the lot he might purchase. "With these monuments in view and by the boundaries marked by them, the executor sold, and the plaintiff and defendant purchased, their respective lots, thus establishing by agreement in the most formal manner, as between them, the boundary line between lots 311 and 312 on the line claimed by the defendant, regardless of where the original or true line between those lots might have been located.

That a parol agreement establishing a boundary line between contiguous proprietors, where the parties have paid money, taken possession, and made improvements on the. faith of such agreement although such agreement changes the line called for in their title deeds, is not obnoxious to the statute of frauds, nor to the rule forbidding the introduction of parol evidence to contradict a written instrument, but is binding upon the parties and may be given in evidence under the general issue, is well settled in this state. Jacobs v. Moseley, 91 Mo. 457" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/jacobs-v-moseley-8008964?utm_source=webapp" opinion_id="8008964">91 Mo. 457, and cases cited; Evans v. Kunze, 128 Mo. 670" court="Mo." date_filed="1895-05-28" href="https://app.midpage.ai/document/evans-v-kunze-8011797?utm_source=webapp" opinion_id="8011797">128 Mo. 670, and cases cited.

In the decision of this case, however, it is not necessary to invoke the doctrine announced in these cases to its fullest extent. For the deed here did not undertake to give a specific description of the boundaries of lot 312 either in terms or by reference, and evidence of the agreement did not vary or contradict the deed, but simply /identified the lot by showing the boundaries by which it was purchased and conveyed. Por such a purpose parol evidence is always admissible. Skinker v. Haagsma, 99 Mo. 208" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/skinker-v-haagsma-8009668?utm_source=webapp" opinion_id="8009668">99 Mo. 208. There is no merit in this appeal. The judgment of the circuit court is affirmed.

All concur.