Epperson v. Epperson

| Mo. | Mar 29, 1901

BRACE, P. J.

This is an action in ejectment by the plaintiff, a son and one of the heirs at law of Aphrey Epperson, deceased, who sues to recover an undivided fifth of the following real estate, situate in McDonald county, to-wit, the northeast quarter of the southwest quarter of section 13, township 22, range 33.

The defendants claim title under a deed in which it is alleged there was a mistake in the description of this forty-acre tract which they ask to have corrected. The' finding and decree was for the defendants, and the plaintiff appeals.

On the first day of January, 1870, the said Aphrey Epperson, by his warranty deed of that date duly executed and acknowledged, in which his wife Elizabeth Epperson joined, relinquishing her dower, conveyed to his son, the defendant George W. Epperson, the following described tracts or parcels of land situate in McDonald county in the State of Missouri, that is to say: the southeast quarter of the southwest fractional quarter of section thirteen, township twenty-two, range thirty- three, containing 39.38 acres; also the southwest quarter of section thirteen, township twenty-two, range thirty-three, containing forty acres; also the southeast quarter of the southwest quarter of section thirteen in township twenty-two, of range thirty-three; also the northwest quarter of the southeast quarter, and the northwest quarter of the southwest quarter of section thirteen, in township twenty-two, range thirty-three, containing eighty acres; all of the above tracts and lots of land, except five acres off of the southeast comer of the southeast quarter of the southwest quarter of section thirteen, in section twenty-two, range thirty-three, and five acres off of the southwest corner of the southeast quarter of the southwest quarter of section thirteen, in township twenty-two, range thirty-three, in all 189.38 acres.”

This is the deed under which the said George W. Epperson, and his vendee and co-defendant, the Ozark Orchard Company, claim title.

It is evident upon the face of this deed that the grantor intended to convey five tracts of land, all situate in section 13, township 22, range 33, and containing in all 189.88 acres, but by repeating the description of one of the tracts, i. e., the southeast quarter of the southwest quarter of said section he in fact conveyed only four tracts, containing in all only 11¡.9.88 acres. Thus’ a mistake appears upon the face of the deed, and when in connection therewith it is considered that the grantor was in fact the owner of five tracts of land in that section, containing in all 189.38 acres, one of which was the northeast quarter of the southwest quarter, all lying contiguous and constituting one farm, in the shape shown in the following diagram:

“X,” the land in controversy, being the northeast quarter of the southwest quarter of said section, the reasonable inference at once arises that the mistake was made by writing the word “south” for the word “north” in the description of that forty, and that in fact that forty was intended to be included in the conveyance. ' When, in addition, it is considered that the said George at once entered into the possession of the farm, consisting of these five forties containing in all 189.88 acres, and known as the "home place " and thereafter, until he sold to his co-defendant a short time before this suit was brought on the third of October, 1896, continued in the uninterrupted possession thereof, claiming, cultivating and improving the same as his own; that his father, the said Aphrey, and his mother, the said Elizabeth, from and after the date of said deed, continued to live with him on the place, always thereafter recognizing it as his in its entirety, until their death, that of the father occurring in the year 1879, and of the mother in the year 1886 or 1888, as did the plaintiff himself, and the neighborhood generally — until about the time this suit was brought —the father having declared before the execution of the deed that he intended to convey the home place to George, and after-wards that he had done so, and both of them by their conduct thereafter indicating that such was the fact — it would seem upon these undisputed facts that there is but little room for doubt as to the mistake or of its character. And the defendants having been in the continuous, peaceable and uninterrupted possession of the premises for more than twenty-six years, without ever having their title or possession questioned until this suit was brought, until which time it had never become necessary for them to take affirmative action, there is no ground for invoking the statute of limitations as a bar to the equitable relief sought by them in this action (Michel v. Tinsley, 69 Mo. 442" court="Mo." date_filed="1879-04-15" href="https://app.midpage.ai/document/michel-v-tinsley-8006205?utm_source=webapp" opinion_id="8006205">69 Mo. 442; Cooper v. Deal, 114 Mo. 527" court="Mo." date_filed="1893-03-13" href="https://app.midpage.ai/document/cooper-v-deal-8010835?utm_source=webapp" opinion_id="8010835">114 Mo. 527) and which the circuit court granted.

The judgment of the circuit court is therefore affirmed.

All concur, except Marshall, J., absent.