39 Mo. App. 441 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This is a proceeding in. equity to restrain the defendant from fencing and obstructing a space, over which the plaintiff claims an easement as and for an alley-way. Upon final hearing the court made a decree ordering
One Morris, under whom both the plaintiff and defendant claim, and who was the owner of all the ground in square or block number 128 of St. Charles hereinafter described, made two deeds on the fourth day of March, 1867, both of which were acknowledged and delivered on the following day. By one of these deeds he conveyed to Gauss, the plaintiff’’ s grantor, a lot' of ground which he described as a lot of ground, being a part of city square number 128, said lot fronting ninety-five feet, six inches southwardly on Madison street, and extending back northwardly with the same width one hundred and thirty-four feet to an alley, bounded south by Madison street, east by part of the same square now owned by Griffith, north by said alley, and west by Fifth street, the lot conveyed being the southern half of a lot or parcel of ground conveyed to said Morris by the heirs of Fielding. By the other of these deeds Morris conveyed to Farris, the defendant's grantor, a lot of ground described in the deed as follows: A lot of ground, being a part of city square number 128, said lot being ninety-five feet, six inches, fronting northwardly on Jefferson street, and extending back southwardly with the same width one hundred and thirty-four feet to an alley, bounded on the north by Jefferson street, on the east by part of the same square, now owned by Griffith, on the south by said alley, and on the west by Fifth street, the lot hereby conveyed being the northern half of a lot or parcel of ground conveyed to said Morris by the heirs of Fielding. The plat hereto annexed will best illustrate the lots represented by these two conveyances under then existing circumstances, and the matters in controversy between the parties.
The vice of this argument consists in this: It omits another and more important element in the construction of deeds, namely, that the instrument must be so read, as to give effect to all its' parts, if practicable. It further loses sight of the fact that there is nothing in the record to show what the property conveyed by Fielding’s heirs to Morris was, unless we have recourse to the deed made by Morris to plaintiff ’ s grantor, in which the property conveyed is described as the southern half of the property conveyed by Fielding’s heirs, and that, by so doing, the description in this one deed necessarily
Applying these propositions to the facts presented by the record, the following conclusions seem inevitable. The deeds executed by Morris on March 4, 1867, to the plaintiff’s and defendant’s grantors call for an alley as the respective northern and southern boundaries of the property conveyed. The property was conveyed in equal halves, the southern half to plaintiff’s grantor, and the northern half to defendant’s grantor. If we read the deeds as conveying to each party the fee, subject to no easement, we must reject the distances given in the deed, and the call for an alley altogether. If we read the deeds as, under proper rules of construction, they must be read, we give effect to the distances and the call for the alley, and the conveyance of one-half of the fee to each of the grantees, that is to say, we give effect to every part of the two deeds. Now there is nothing to show- that the grantor contemplated two separate and distinct alleys, one on the southern boundary of the lot conveyed to defendant’s grantor, and one on the northern boundary of the lot conveyed to plaintiff’s grantor; on the contrary all the circumstances, as well as the distances in the deed point to the fact that he contemplated only one alley for the benefit of both grantees, occupying an intervening space between the two lots conveyed, as their boundaries are determined
Point is made on the want of proper parties defendant. As this question was not raised either by demurrer or by answer, it is not properly before us for review.
All the iudges concurring, the iudgment is affirmed.