Kellogg v. Mullen

45 Mo. 571 | Mo. | 1870

Bliss, Judge,

delivered tbe opinion of tbe court.

This is the same action that is reported in 89 Mo. 174. After tbe case was remanded tbe plea of the statute of limitations was abandoned, and a trial was bad upon the question of location merely. All tbe property whose location is involved lies in tbe northwest part of block 53, and fronts on Third street. Tbe common source of title is Alexander Bellisime, who owned 120 feet (French) on Third street by 150 on Poplar. Defendant, in bis argument,, asserts that Bellisime’s south line is tbe center of tbe block; but I find nothing in tbe record to warrant tbe assertion. His title, deeds indicate nothing in that respect, and there is nothing to show bow far tbe block extended south of him, or who were its owners, except that tbe name is given upon whom be is bounded. By two deeds, one in 1811 and one in 1812, he extends south 120 feet (French); and we are not advised as to the size of the block, or whether there was any such division as a block, or whether there was any other cross street near him except the one bounding him on the north. We must assume, then, that he owned,- fronting on Third street, the number of feet mentioned in his deeds, and this fact becomes material.

Bellisime and wife, on the 6th of April, 1816, conveyed to Henri Baltnt 60 'feet (French) front on Third street by 150 deep, giving his boundaries, and “adjoining on the north his grantors.” This conveyance gives Baltut the south half of what Bellisime thus owned, and, by a marriage contract, it afterward became the property of his wife, Pelagie, who was afterward twice married, and became Pelagie Boyer and Pelagie Charleville. Thus Bellisime’s lot became divided into two equal parcels ; and before said Pelagie made any conveyances, he had sold the north half, which, by various transfers, became, on the 29th of June, 1831, the property of Hilaire Semont, or Semons, or Cimmons, as he is variously called in other deeds. The description of the land in all the deeds is substantially the same, and is 60 feet (French) front by 150 deep, and is bounded north by the cross street (Poplar).

Coming back to the south half, first conveyed to Baltut, I find that Pelagie Boyer, on the 27th of November, 1847, as part of the land so received of Bellisime, conveyed to Thomas J. White 32 feet fronting on Third street by 160 deep, bounded north by a lot of Cimmons; and by three other successive conveyances the same land, on the 8th of February, 1854, comes into plaintiff’s hands. In each instrument, Cimmons or Semons is called for'on the north; and the front .is 32 feet, which is equal to 30 feet French. Other calls show that she intended to convey next to Semont.

. On the 10th of January, 1851, Pelagie Laforce (Boyer) conveys to O’Flaherty 60 feet (French) front by 150 deep, which covers all that had been conveyed through White and' others to .plaintiff, with-what she had left. Of course the deed only operates upon what remained in her hands after her deed to White, and can in no way affect plaintiff’s title. The'dispute is between Kellogg and the tenant of O’Flaherty; the former claiming his full 30 feet French, south of Semons-, which 'claim cuts off over four feet from. defendant’s possession; and'the latter, who has his full 32 feet English (30 feet French), insisting that plaintiff must make up his complement out of Semont.

Had there been evidence to show that the south line of Belli-sime, before bis conveyance to Baltut, was tbe center of tbe block, wbicb is less than 120 feet (French) from tbe north line, then Semont, as bis last grantee, must lose, and tbe plaintiff and defendant, who bold under Baltut, will each take their full 30 feet French. This the defendant’s landlord has now, and tbe plaintiff would be required to move north, instead of south, for bis complement. It wbuld make no difference if Semont bad acquired' title by limitation, as be should have moved before. But, as we have before seen, tbe record Tails to show any monuments locating, or from wbicb to locate, Bellisime’s south line. Hence we must assume that it was as far south as bis deeds make it, and far enough to.include tbe usual calls for. front feet in bis conveyances to Baltut, and to Bouvet, through whom Semont bolds; in wbicb case tbe plaintiff must take from O’Flaherty tbe strip in dispute, wbicb is necessary to give him bis 30 feet French; and O’Flaberty, if be has not lost it by adverse possession, must take a similar strip from bis southern neighbor. This view was taken by the court, below, and tbe defendant’^ declarations of law, based upon bis theory of tbe case, were properly refused.

Tbe judgment will be therefore affirmed.

Tbe other judges concur.