29 Mo. 210 | Mo. | 1859
delivered the opinion of the court.
The first point that will be noticed is whether the court below erred in admitting as evidence the report of sale made by the administrator and the plat accompanying it. It is urged first, that the report could not be admitted to limit
The report of a sale of real estate made by an administrator is the foundation of the title, and its approval by the court is his only authority for executing a conveyance ; and when it is referred to in the deed, it thus becomes a part of it, and they are to be construed together as one instrument.
In this case, the statute on the subject of administration sales of real estate seems to have been duly complied with. The deed of the administrator shows that a full report of his proceedings was made to the county court, and that the same was duly approved. It is true, that there is no express reference in the deed to the plat; but the plat is referred to and made a part of the report, and thus becomes virtually a part of the deed, as much so as if it had been incorporated into the body of it.
The admissibility of the plat as evidence and its effect are different things, which seem to have been confounded in the second point made by counsel. If the plat, by reference in the deed, becomes a part of the latter, it is admissible for that reason irrespective of any supposed conflict that may appear between them. What its effect may be in this respect, or how far one may control the' other in ascertaining the description of the land conveyed, is a question of interpretation, and not one of competency. In such cases, the writing referred to may or may not qualify the descriptive parts of the conveyance, and one may correct an erroneous description contained in the other, or even vary or add to as well as explain it.
But the objection is not well taken for another reason. The acceptance of the deed was an acceptance of the plat, which was a part of it; and the defendants, (plaintiffs in error,) are estopped from impeaching it. They claim title under the deed of the administrator, and set it up as a defence, alleging in their answer that the land in controversy was con
The question in this case is one of boundary, and it relates to the southern boundary of the land conveyed by the deed of the administrator. In the deed it is described as “ all the right, title and interest which Nicholas Janis at the time of his death had in and to the real estate, being lot number eight of survey No. 159, bounded south by part of said survey; west by lots of Henry Bower, Jean Komepeter and Henry Dave; north by Charlesworth’s farm; and east by commons ; containing five and 59-100 acres.” The deed from the heirs of Nicholas Janis to Orrick (defendant in error) describes the land thereby conveyed as “ a tract of land lying northward of the city of St. Charles, and including part of survey No. 159, originally confirmed to Nicholas Janis under Antoine Janis, together with lands lying south-wardly of and adjoining said survey; the tract hereby conveyed being bounded on the north by the lands sold by Arnold Krekel, administrator of the estate of Nicholas Janis, deceased, to Rice and Barwise and to H. Bower; on the east by lot claimed by Henry Beckman,; south by lot of Lorenzo Holmes; and on the west by the St. Charles and Marais Croché macadamized road; and being all the land there lying contiguously which belonged to the estate of Nicholas Janis, deceased, and which the parties of the first part claim by inheritance or otherwise.”
It is contended by the plaintiffs in error that the land in
If the boundaries of the land designated as lot number eight can be ascertained from the deed with the report and plat, the quantity embraced within such boundaries, whether more or less than the quantity called for in the deed, passes thereby. Quantity becomes material only where the boundaries are uncertain or doubtful, and then it is entitled to consideration according to the circumstances of the particular case. It forms no part of the description of the land conveyed, where monuments or visible objects are called for as boundaries, but is mere matter of estimate. Therefore, if all the particulars of the description by metes and bounds do not concur in designating as lot eight a parcel of land which includes the one 59-100 acres in controversy, then it is no part of the land intended to be conveyed.
There is no difficulty in applying these rules satisfactorily to this case. It is evident, by comparing the deed and plat together, that to fix the southern boundary of lot eight where plaintiffs in error claim it should be, would be to derange the boundaries of the land and substitute another and different description. The call in the deed and plat for the western boundary is lots of Henry Bower, Jean Komepeter and Henry Dave; but if the southern boundary is extended as proposed, the western boundary would then be the lots of the persons named and the king’s highway ; and the northern boundary, instead of the call for Charlesworth’s farm, would be that farm and the land of Henry Bower — thus, giving an entirely different form to the land, and substituting other and different calls, and so varying the description as to include a parcel of land not designated by the plat or deed. If, instead of the call for the land of Bower, Komepeter and