| Mo. | May 16, 1893
The suit is ejectment to recover possession of a parcel of land described in the petition as a strip or parcel of land lying in block number 117 of the city of St. Louis and more particularly-as follows: “Beginning at a point in the north line of Olive street, seventy-five feet east" of the east line of
The answer was a general denial and an equitable defense. The latter was abandoned at the trial and no notice need be taken of it. •
It may be stated here that plaintiff and defendant each claim to have buildings thereon and occupy, by themselves or tenants, adjacent lots on the north side of Olive street and between Fifth and Sixth streets one hundred and fourteen feet in depth. Between these buildings is a narrow alley way two feet seven and three eighths inches wide on Olive street. Plaintiff by his tenant occupies the east lot and claims to own the whole of this alley and also the strip of land in dispute which is occupied by the east wall of defendant’s buildings while defendant claims not only the wall in dispute but also a portion of the alley. The controversy is over the description of the land conveyed as contained in certain deeds under which defendant claims. It appears from the evidence that one half of block 117 on the north side of Olive street contains one hundred and thirty-five feet, which includes seven feet of an alley on the east.
On the fourth day of February, 1836, John B. Sarpy and wife made a deed of conveyance to Albert O. Edwards describing the land conveyed as follows: “Beginning at a point on the northern boundary line
On the thirteenth day of September, 1867, West by the sheriff conveyed to L. Ruffner, Jr., by the same description, to which was added the following: “and is the same lot of ground conveyed to said West by Albert C. Edwards and Louisa C., his wife, by deed dated September 1,1838, and recorded in the recorder’s office of said county, in book E. number 252; said lot of ground being bounded on the west' by John B. Sarpy’s estate, and on the south by Olive street.” This deed was recorded in book 347, page 98. On the twenty-fourth day of January, 1873, Lewis Ruffner and wife conveyed to Washington West (plaintiff herein), by same description as the deed from Sarpy to Edwards, adding thereto the following: “Said property being acquired by the parties of the first part by deed recorded in book 347, page 98.”
On the thirtieth of November, 1878, Washington West conveyed to Virginia L. Ruffner’s trustee a portion of said land describing the same as follows: “All that certain lot, piece or parcel of ground situate in block number 117 of the city of St. Louis aforesaid, and
On the twenty-second day of October, 1885, said trustee conveyed to defendant a lot described as follows: “A lot of ground in the city block number one hundred and seventeen (117), beginning at a point in the north line of Olive street distant fifty (50) feet eastwardly from the northeast corner of Sixth street and Olive street; thence running eastwardly along said north line of Olive street twenty-five feet (25) feet; thence northwardly and parallel with Sixth street one hundred and fourteen (114) feet; thence southwardly and parallel with Olive- street twenty-five (25) feet;, thence southwardly and parallel with said Sixth street one hundred and fourteen (114) feet to the place of beginning, and all improvements now on said described ground.”
The evidence shows that the east boundary line of lot 41, mentioned in deed 1, was coincident with the center of an alley on the east side of the block, and that the alley was fourteen feet wide; that the frontage of the block, including seven feet of the alley, was one hundred and thirty-five feet. Leaving thirty feet on the east, the fifty-two and one half feet conveyed by
Plaintiff asked, and the court refused to give, the following declaration of law: “By the deed from Virginia L. Ruffner’s trustee to the plaintiff, Ambrose K. Bretelle, read in evidence, there was, conveyed to plaintiff only a lot of ground twenty-five feet in width, the western boundary whereof is a line fifty feet east of Sixth street. If, therefore, from the evidence the court believes that the strip of ground sued for in this action lies east of said twenty-five foot lot as conveyed to defendant, then, under the other evidence offered in the case, plaintiff has the legal title to the strip here sued for.”
The judgment was .for defendant, and plaintiff appealed.
There can be no doubt of the proposition urged by counsel for defendant, and substantially conceded by opposing counsel, that a part of the description in a deed of the land conveyed thereby which is inconsistent or repugnant to another part may, if contrary to
Mr. Cozens, who had for many years been surveyor in the city of St. Louis, and familiar with the location of the property in controversy, stated as a witness that the west line of the property described in the deeds, from Sarpy to Edwards, and from Edwards to West, was fifty-two and one-half feet east of the east line of Sixth street. The deed from West by sheriff to Ruffner copies the exact' description of these two deeds, and in addition recites that it conveys the same lot of ground conveyed by the deed from Sarpy to Edwards, giving date, names of parties and book and page of record. The reference to the book and page wherein the other deed had been recorded, made such description a part
In the deed from Ruffner to Washington West, plaintiff copies the description from the three foregoing deeds, including the call for the western adjoining proprietor in the deed by the sheriff to Ruffner, and also recites that the land conveyed by it is the same acquired by the grantor, West, from Edwards, dated September 1, 1838, giving the book and page of the record in which it is recorded. These deeds all locate the beginning in describing the land at the southeast corner of the lot, but the deed from Washington West to Mead, trustee of Ruffner, begins at the southeast corner of the lot, and recites that this latter corner is located fifty feet east of Sixth street, which is evidently a mistake, as it should be fifty-two feet and six inches. As in other respects, in so far as applicable, it contains the same description in the four preceding deeds, and also recites that it conveys the western twenty-five feet of the land acquired by the grantees from Lewis Ruffner, Jr., and wife by deed dated January 24, 1873, and duly recorded in book 462, page 342, and for a more definite description reference is made to said deed. By the description in these deeds it will be seen that the ground in controversy is embraced within ■these provisions. The call in this deed for fifty feet must be rejected; the western lot being fifty-two feet and six inches in width, is not only a monument, but the chief and controlling one in this case. It is well settled law that monuments when called for in deeds generally control over calls for course and distance. Rutherford v. Tracy, supra; Jamison v. Fopiana, supra; Cooley v Warren, 53 Mo. 166" court="Mo." date_filed="1873-07-15" href="https://app.midpage.ai/document/cooley-v-warren-8004094?utm_source=webapp" opinion_id="8004094">53 Mo. 166. In the case of Shewalter v. Pirner, 55 Mo. 218" court="Mo." date_filed="1874-01-15" href="https://app.midpage.ai/document/shewalter-v-pirner-8004362?utm_source=webapp" opinion_id="8004362">55 Mo. 218, it is said: “It is very true that natural or known monuments will control courses and dis-
If this is the proper construction to be placed on these deed, and we so hold, the plaintiff ought not to recover in this action, for the want of title, and it makes no difference whether defendant has shown title in himself or not. If not in defendant, it is outstanding, and plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of that of defendant. Siemers v. Schrader, 14 Mo. App. 346" court="Mo. Ct. App." date_filed="1883-11-20" href="https://app.midpage.ai/document/siemers-v-schrader-8258759?utm_source=webapp" opinion_id="8258759">14 Mo. App. 346; Foster v. Evans, 51 Mo. 39" court="Mo." date_filed="1872-10-15" href="https://app.midpage.ai/document/foster-v-evans-8003742?utm_source=webapp" opinion_id="8003742">51 Mo. 39. There was no error in refusing the instructions asked by plaintiff.
Being unable to perceive any reversible error in the trial of the cause, or in the record, and the judgment being for 'the right party, it is affirmed.