*1 SUPREME COURT OF MISSOURI. v. Davis. Korneman Thirty-three, Township- Section Twenty-four1 north, Range County, Thirteen east, in New Madrid Missouri,” paragraph they the first thereof, where occur between inserting words “land” and that,” “and in lieu and following: thereof the “in herein Thirty-four alleged Section petition, in the a but is strip off of east Thirty-three, side of Section Town- ship Twenty-four, Range in New Thirteen, Coun- Madrid ty, triangle, being the form Missouri, of a chains and running links wide at the north end point a, and at by striking south end of and section,” out word “therein,” where the fourth same occurs in the paragraph between the words “land” “described,” inserting in lieu the word “hereinbefore.” thereof judgment As so modified the is affirmed. Brown GG., concur. Small, opinion PER oregoing f CURIAM:—The Ragland, adopted opinion
C., is as the of the court. All of the judges concur. , Appellant
HENRY KORNEMAN, C. v. JOHN E. G. et al. DAVIS One, Division March 1920. Ambiguity: Admissibility
1. CONVEYANCE: Latent Par- Acts of description ambiguity ties. there When is a latent in the of land contained the circumstances situation parties put they upon construction have acts, evidence; language are admissible in but when the ambiguity, language, applied deed contains no or when such circumstances, leaves no substantial doubt property conveyed, parties as to the then the acts of the under the deed are inadmissible. Quantity. -: conveyed -: An estimate of the land thirty a deed description, as “about acres” ais particular mgy thing be used to ascertain the conveyed. Yol.
3. -: -: Acts of Grantor. father con- Beneficent Where veyed thirty lying creek, gift south of a as a daughter, reserving himself, possession taking a life estate to adjoining lying an four-acre tract east of the *2 acquiescence therein, creek and his gift small of mon- a of a amount ey arising logs from the sale therefrom a failure object taking father to her timber to build an ice- therefrom house, regarded are to be as other acts kindness the towards daughter regard legal rights, without to his her an not as interpretation by description conduct of the of the land contained deed, in the and are not admissible to show that four-acre the conveyed. tract was statutory Finding finding should of Facts. A of facts PRACTICE: involved, bearing on the issues embrace all the material facts merely detail, should set them out state conclusions
inferences therefrom. Appeal from Alonzo D. Clinton Circuit Court.—Hon. Judge.
Bu-rnes, , Reversed and remanded*. M. Henri L. Warren
W'.8. J. Johnson and Herndon, appellant. for
(1) upon Tlie solution of turns construction the deeds from Thomas P. Jones to subsequent and the plaintiff. construing* sheriff to In the first mentioned primary intention is to ascertain true task ambiguity grantor, found some and unless there be description rc-spect uncertainty land with conveyed, parol had to state- resort cannot evidence grantor such intention. and acts of the to ascertain ments Ed.), p. Long (3 Timms, v. 2025.; Devlin on Estate Real J. 208 Mo. 9 C. 515; v. 107 Mo. Cdbel, Weissenfels 512:; Heady Wagoner, Cyc. Mo. Long 178; 47 618; v. 158'; 17 Sorge, 165; Mo. 258 v. Mo. Warne 633; v. Hollman, 251 Ry- 396*; v. Mo. Eckle 273* 262; Smith, Elsea v. 18 C. J. 536; 242 Mo. Sherwood, v. Mo. Howell 440; 256 283, description W)here (2) Mo'. Ash, 169 v. O’Brien light in the deed when considered 236 SUPREME. OF COURT1 MISSOURI. physical conditions of the as referred open
to therein is two constructions —one defi- clear, nite and certain, ambiguous, other indefinite uncertain —the clear meaning and definite will be taken expressive grantor. real intention of the J.C. 152, 208 and note 77; v. Hubbard Mo. Whitehead, 221 (16 Ed.), 672; on Greenleaf Evidence sec. 605 L; 18 (3) C. J. 217. a natural Creek is monument. It completely sixty-acre grantor. traversed the tract of the (4) Another rule of construction of deed call quantify. When others calls in a deed will not aid quantity then court, a call for will be used ascertain grantor the true parol intention of the before .of his intention can be resorted to. Davis Hess, v. p. 31; 171, C. J. sec. 9 C. 30; J. 44 at sec.
p.
Myérs,
Behert
228;
v.
24Ó
58;Mo.
Cole v. Mueller,
*3
(5) Considering
relationship
Mo. 638.
.187
of father
daughter,
grantor
and
existed
and
which
between the
grantee, the
if it
fact,
be a
that the
fact,
allowed
father
daughter
disputed
to take
from the
timber
tract for
purposes
specific
certain
would not constitute evidence
ownership
ownership
disputed
of
or claim of
to ‘the
grant
of
an intention
his
to include
init
daughter. 18
J. 261
C.
Miller Miller,
:
v.
91 Kan. Davis
1;
Ky.
v.
1
L. 165 Hubbard v.
Mo.
;
Hubbard, 140
Hardin,
.
respondent.
Henry
Wm.
and
for
Frost S Frost
appli-
(1)
meaning
any
If there is
doubt
or1
employed
cation
term “south of Shoal creek”
application
given
meaning
in the
deeds,
and
prevail.
parties
Petley v. McEl-
used them should
who
Gaslight
City
murry,
v.
Pub.
(2)
Co. v.
cuit Court. Suit a fraction for four and Judgment ap- land. Plaintiff defendants. peals. de- deed under Plaintiff title sheriff’s claims belong- county cree lands in certain ing deceased. heirs of Thomas Jones, widow and leaving intestate, on 9th of December, He died 1915, surviving Nancy sons, T. his four him, widow, his Jones, Jones, Harrison William James G-. M., L., Charles daughters, Zelleta Hef- two B. Susan dollar in consideration one lin. March On executed love said Thomas Jones effeetion, warranty conveying Ken- Susan B. deed nedy described, as follows: in said parcels following lots, described tracts
“The County lying, being Clinton situate half of the east That *4 to-wit: Missouri, of State Township! quarter Eleven, Section east of the south of Range Thirty, lying Creek, Shoal Fifty-six, south of of thirty containing acres. about reserving grantors herein them- unto The
“Recital, the lands life estate thereof or the selves successors provided that further con- hereby granted, and is express if the condition veyance on the made is convey attempts lands sell alien, grantee herein during life of any thereon place lien granted or written their either of without them, grantors herein, SUPREME COURT OF MISSOURI. Davis. v. duly acknowledged consent public notary before a lands herein shall revert to the title uncon- shall ditionally grantors, assigns.” vest heirs (cid:127) theAt time this deed was said Thomas executed, the south Jones_owned three-fourths of the said east half quarter of southeast said Section of Eleven. judgment April Term, was rendered at the 1917, of the property said court. at The; was sold sheriff’s partition September pur- sale in 24, 1917. by plaintiff chased in his sheriff’s deed is described follows:
“'All that of the east the south three-fourths quarter half of the southeast in Town- Section Eleven, ship Fifty-six Range Thirty lying, off Shoal north containing' and. thirty Creek, more or less.” duly acknowledged The sheriff’s was dated open Upon receiving court on October plaintiff proceeded to erect a fence on the south inclosing and east in controv- sides of the the tract ersy, appeared when fence defendant tore Davis accompanied by He down. sentinel the “silent family shotgun suggested the' the fire-side”—the —and plain- propriety “blowing; through'one of a hole” boys, enough boy “big tiff’s crawl testifies, so ’’ through. half-quar- plat A said south three-fourths plaintiff, surveyor, ter witness made section, following a was introduced of which evidence, copy location and course far as it shows the so through the said tract: Creek in *5 239 Vol. v. Davis. Korneman part in shaded tract. bend of half of the in the Shoal Creek north plaintiff to it virtue that he obtained title claims defend- partition, sheriff’s under sale claim from Susan .B. ants virtue of a deed title dated and husband, October part surveyors further testified Plaintiff’s plat where creek, shown on the the tract south east, through west to irregularly tract it runs part acres, north .of and the and 97 rods 29 contained controversy, including contained creek, controversy con- That rods. rods. 4 acres ." tained SUPREME COURT OF MISSOURI. *6 pro There' was evidence and con be- to the effect that fore the in place sale took an announcement was made all Kennedy to bidders that Mrs. owned the controversy, in but sheriff, never-the-less, off- ered plaintiff, sold the land to as described in his sheriff’s deed. partition proceedings to which all the Jones including Kennedy,
heirs, parties, Mrs. were judgment included several different tracts, and the after therein, reciting them they “264 more all, stated contained Giving less.” acreage they the other tracts the were regular entitled to, as subdivisions, Government plaintiff’s judgment tract must in said have been esti- “30)acres containing mated as in less,” stated more plaintiff. of the sheriff deed to
There was evidence that Harrison one Jones, possession was sons, in 60-acre tract under whole arrangement some of a sort verbal with when father, Kennedy to Mrs. made, was that he refused deed possession give up to until sometime December — paid says, pay when his father him to for he $100 say, clearing some he had to and other witnesses done, possession Kennedy. There surrender to his Mrs. sister, Kennedy lease is evidence that Mrs. then made verbal intending property, to her her brother Charles question he property that therein, include the to to defendant lease a verbal thereof afterwards made payment for controversy toas There Davis. also arose testimony the father logs, that there some walnut is prop- paid logs Kennedy from the for cut Mrs. $33Li3I3 testify question. to erty others Charles Jones and money according was this But, Jones, to Harrison this. logs paid her land further about her out on south, dispute. December, which there is no After during timber the father’s cut from the some was life, question lumber for an ice which house, land make ground. Kennedy built on tract of Mrs. another Also by her. There timber cut off no fence other was around conveyed' separate ground Mrs. TEEM, Yol.
Korneman v. Davis. from the tract. reminder Charles Jones had charge of rest of the tract for his and there father, was evidence introduced was defendants, wood question, cut from the land of the tract west admitted- ly piled owned stored and on the father Kennedy. controversy after That to Mrs. between the Jones at sometime brothers during period also somewhat was calorific shown suggestion by the one that on of one witnesses though actually pre- occasion said sentinel,” “silent (cid:127) approval by Harrison referred with sent, Jones. *7 testimony, the
At the court made the the close finding following of facts: as following finding of facts
“The makes the court attorney plaintiff begin- requested by at the the for the ing hearing the court evidence, of the trial. After weight P. Thomas that finds the of the evidence, from conveyed question in to and wife the land Jones Kennedy, Ken- the to Mrs. Mrs. and after sale ownership Kennedy nedy exercised acts of that Mrs. Thomas P. Jones the said her acts land, over the acquiesced claiming own and it as her was knew that she therein. “And said Mrs. that further finds court the posses- it and had Davis, who used Mr. to sold said land up time that to own the as his control of sion and plaintiff the with possession interfered open act- the still has defendant that the case, have at the commence-' land and possession did of said ual legal have the and that defendants suit, ment of this possession there- to the entitled and are title said to of.” excepted. plaintiff finding of facts which To lawof following declarations refused court
The plaintiff: by the asked to law jury, sitting declares as a court, “6. that the evidence finds court if the that east half south- side west entered Creek 16—281 SUPREME OF COURT MISSOURI.
Korneman v. Davis. (cid:127) quarter east Township Range of Section 11, County, Clinton and flowed said half- Missouri, across quarter emerging section, therefrom side on the east beyond passing thereof, the east line then the thereof, deed from Kennedy, P. Jones to B. Thomas Susan offered conveyed half-quarter only evidence, that of said point lying section south of the where said Shoal Creek point entered on the west line where'said creek passed beyond through and said half- the east line of quarter notwithstanding creek, section, the fact said beyond passing half-quarter after east line of again around the entered flowed same section, and. beyond again passing tract in the east before half-quarter line of said section. sitting jury,
“7. declares the law court, de- Jones, of Thomas P. all statements acts grantor, ref- all acts of the with defendant’s ceased, controversy, testified to the erence competent are defendant, for the witnesses making considered in this finding and are not to be case case.” on issues give excepted duly court’s refusal to Plaintiff said declarations. plaintiff appealed
Failing trial, new obtain a this court. *8 ambiguity
I. is that when a latent It true is there description in of the circumstances situa and a parties, they tion construction the put upon acts, the are ad Pave deed Parties McElmurry, [Tetley missible evidence. v. in 201 Mo. v. Mo. 382; Louis, 121; Gas St. 46 Union Co. Depot Railroad, 291.] Co. v. 131 Mo. language the
But it is true that when also of deed the ambiguity, language applied when contains such no the sub circumstances leaves no property conveyed by the doubt as to stantial the parties then the acts the under of deed are inadmis the [Gas 121; sible. v. 46 Mo. v. Louis, Co. St. Weissenfels Yol. 243 75.] Myers, 515; 240 c. Cable, 208 Mo. Beheret v. Mo. l. In Co. v. Mo. court Gas St. 46 c. the 131-2, l. Louis, 'parties sought said: “The intention of must be the first scope purpose, parts, in tbe instrument in all its its placed; parties the circumstances which the were may practi deciding before whether we the consider interpretation parties, cal the we see whether must of (The are italics intention is clear and unmistakable.” ours.) Myers, quoting In l. Chief Beheret 75, v. Mo. c. “ rule sound of
Justice this court said: is a ‘It Kent, vary you substantially that cannot alter, or This, by parol proof. effect a written contract of excellent against perjuries: guard rule fraud and is intended jus supported by steadily and it cannot be too courts of intelligible, ... If be tice. says of a contract words Inchiquin, (Shelburne v. Lord Chancellor Ttiuklow parol 341), no where Bro. is instance C. C. there (cid:127) give testimony them a different has been admitted to ” sense.’ construing It is also ruled that four con within its be words the deed comers must of stating given together and effect that words sidered description quantity the estimated or area are identity fixing so and.must be considered the land conveyed. 1. c. Hess, Davis v. Mo. In “The of law is well rule settled J., said: Black, purpose quantity may resorted to the call for un making which otherwise would that certain contracts, as in wills and . as well . .In deeds certain. parties thereto, intention determine are to we whole.’,’ by taking instrument as a is done and this c. 187 Mo. l. Mueller, v. is Cole effect the same To estimate area that the Fox, J., said where “part “more or less” number certain Spiker, v. 0'., description.” Whitwell Brown, in Cole v. Mueller, follows the rule refers to c. 641, ascertaining particular ... supra, “a means *9 applies. description in the deed thing” which the to SUPREME COURT OP MISSOURI. Davis. Korneman v. In this conveys Kennedy case, deed to Mrs. of the tract “lying therein mentioned, south Shoal ’’ containing thirty testimony Creek, about acres. The surveyors plaintiff was that the area running irregularly land south of Shoal Creek, from through' west east to the tract, was 29 a fraction fully part acres, which thus identifies that of said tract conveyed conveyed as the lair'd to intended Kennedy question deed. The four-acre tract cannot by any English language fair use lie be said to any south of Shoal at Creek more than lies north all, southwesterly constituting of that Creek its boundary. only It could described tract itself as a lying’ To it in the east Shoal Creek. include deed of Mrs. would her deed contain make two discon- substantially exceeding nected. tracts area estimated strong her deed. So, too, circumstance that Shoal irregularly through running Creek does, tract, as it boundary dividing (cid:127)from to is a natural east, west the, nearly-equal parts line between the two tract, contiguous body leaves land. each one proceedings, portion too, indicated that the north of the belonging creek still contains 30 more estate which would exclude tract less, Kennedy’s langnage Mirs. Ken- from deed. Mrs. nedy’s applied potent deed when surrounding perfectly circumstances is clear with- ambiguity. parol out inter- Therefore, evidence of the pretation parties by their conduct otherwise parol was inadmissible. Besides, admitted . necessarily casó does show that either the grantor, grantee, Kennedy, Jones, Thomas or the Mrs. thought question conduct, conveyed Kennedy by Mrs. her was 'deed expressly father. That deed reserved a life-estate in the grantor, permitting’ Jones, Thomas SO'that his act permitting lease it his son and him to sub- giving something Davis lease it to her which the deed parol clearly entitled the father to retain, and was a *10 Vol. legal
gift to his of reference outside the deed and without rights pos- being to the father entitled thereunder. The pos- express talcing by the deed, session the the terms of acquiescence daughter, the father’s the session regarded to- must another be as act of kindness therein, interpretation daughter, or his wards his not an of gift legal rights being her under the This the so, deed. logs, to failure of object from the and the sale of $33.33 daughter taking an ice-house to his timber build to might purposes question, or for other the land in from disposition also be referable to the the father natural of regard gifts or his to his make to without to rights legal and incon- her under deed. These isolated the. (he clusive acts of of short duration died father, but unequi- 1915), December, not of such duration in are regarded in of vocal to the construction character , the deed. supra, court l. Case,
In the this Gas c. understanding “It that such said: is true evidence of language when is clear not should be entertained interpretation, case, will admit of one because in language but is fraud mistake the used unless there or any possible the intention. Nor best of should equivocal regard, paid iso loose declarations to parties conduct of the lated but the continuous acts, years concerning of the. series every act its contract, fulfillment conditions— may pointing make their under in the same direction— ’’ language. precision greatest standing as the as clear (The ours). are italics parties admitted did case acts of up required law standard thus
measure erred below, therefore, make The court them admissible.. plaintiff’s refusing give declaration numbered de- claring them inadmissible. Kennedy’s from Mrs. her not cover-
II. deed father question, passed ing there is no doubt that tract purchase plaintiff his virtue deed SUPREME OP MISSOURI. COURT
Korneman v. Davis. partition. description the sheriff in is all containing “lying .of north Shoal Creek surveyor's ^.iiby more or less.” The Partition plaintiff testified that the area north through (running east) Creek the tract from west controversy, including and fraction the tract acres, excluding 2:2 north and a fraction it, acres. It was Applying of the line of creek above indicated. applied same rules of construction heretofore to Mrs. Kennedy’s plaintiff the deed sheriff to the *11 conveyed question. embraced and respecting III. What we have said construction assumption two these been on the deeds has by areas location of Shoal sur- Creek, testified to veyors plaintiff, substantially for correct, were respondent’s, denying seriously, but while not do <rfinFacts. adpait not such correctness. The lower court finding its relating of facts omitted the facts areas of the different tracts and location course through respect property. Creek In this it com- statutory finding pur- A mitted error. as this facts, ports bearing to be, should embrace all the material facts on the involved, issues and should out detail, set them merely and state conclusions inferences there- from. Had the facts indicated been above found respondents, substantially court, or admitted surveyors, as testified to who testified for plaintiff, duty outright, our would to reverse the case judgment plaintiff. and direct a for But, as the record judgment stands, the lower court must be reversed, proceed- the cause remanded another trial to be according expressed. ed with to the views herein It is ac- n cordingly so ordered. Raglancl, CO., Brown and concur. foregoing) opinion PER CURIAM:—The by Small, adopted opinion
C., is All court. judges concur.