Schreiber v. Osten

50 Mo. 513 | Mo. | 1872

Adams, Judge,

delivered the opinion of the court.

This was ejectment for part of a lot'of ground in John Patee’s addition’to the city of St. Joseph. John Patee, in 3851, acknowledged and filed in the recorder’s office an addition to the city of St. Joseph, containing blocks divided into lots. Block 12, on this map, was divided into 16 lots fronting on a street running' north and south. Afterwards, and before any of the conveyances were made under which either party holds, Patee surveyed block 12 into 17 lots instead of 16, fronting on the street running east and west; and made a map of this last survey, which was not acknowledged or filed for record. Under this last subdivision and ihap of block 12, Patee conveyed to plaintiff’s grantor lots 16 and 17, and plaintiff’s grantor conveyed to him the lots 16 and 17 of block 12 by the same description, both deeds merely referring to Patee’s plat of his addition to the city of St. Joseph, without distinguishing whether it was the recorded plat or the plat made afterwards. Patee also conveyed to the defendants lot 14 of block 12, and, at the time he conveyed it, showed the last map as containing the true lot as fronting on the street running east and west, and put the defendants in possession of the lot as thus surveyed on the ground.

The evidence abundantly shows that both parties respectively claimed and paid assessments for improving the streets and the taxes on their respective lots, as surveyed and platted on the last map. The only question in the case is whether the original sur-’’ vey and map, as acknowledged and filed, is conclusive as to the description .of the lands conveyed ; and whether the other map and parol evidence were admissible to show the true description of the lots actually conveyed, in opposition to the recorded map. The court admitted such evidence and the plaintiff excepted. The plaintiff also asked various instructions, but it is unnecessary to set them out, as the main point is whether any evidence was admissible other than the recorded map to identify the lots really conveyed.

‘ It may be observed that this is not a question between subsequent purchasers for a valuable consideration and without notice. But it is a question arising between two grantees ■ under the same grantor, neither of whom was deceived as to the particular lots he was buying. They both thought they were buying under the description in the last map, and not under the recorded map. The evidence is not offered to alter the descriptions as contained in the deed, but merely to identify the lots as described in the deeds.

Surely parol evidence may be. given, and is always given, to locate and identify lands as described in deeds. The two maps raised a latent ambiguity not .appearing upon the deeds, which the parties had a right to remove by parol evidence by showing what particular survey was intended to be referred to by the deeds'. The evidence abundantly proved, not a mistake, but -the exact lots as laid out on the ground and map and described in the deeds. The plaintiff’s deed also on its face shows that the last map was referred to, as the deed conveys lots 16 and 17 in block 12, whereas under the recorded map there was no lot 17 in'block 12.

I am clearly of the opinion that the evidence was proper to identify and locate the lots on the grounds as described in the deeds. (1 Greenl. Ev., §§. 287, 297; 21 Mo. 391; 2 Black, 499.)

Under this view the judgment must be affirmed.

The other judges concur.