238 Mo. 629 | Mo. | 1911
Lead Opinion
Ejectment to recover a strip of land in Jasper county bounded in the petition as follows: ^‘Beginning at a point four hundred and eighty-eight and five-tenths feet north and twenty-one and three-.tenths feet east of the southwest corner of the southwest quarter of the southwest quarter of section thirty, in township twenty-eight of range thirty-two in Jasper county, Missouri, thence east one hundred and eighty-six and seven-tenths feet, thence north twenty-nine and nine-tenths feet, thence west one hundred and eighty-six and seven-tenths feet, thence south twenty-nine and nine-tenths feet to the place of beginning.”
Both parties claimed under Cynthia Hinkle and John Hinkle, who were the owners of the entire forty acres, the west line of which is 1319 feet long. September 23, 1880, they conveyed, by warranty deed, to Francis M. Tooley, a parcel described as follows: “Two acres of land described as follows, beginning at the northwest corner of the southwest quarter of the southwest of section No. thirty No. (30), township twenty-eight of range thirty-two, thence running east one rod past a well near said line, thence south far enough to include towe acres in said tract to the west line.”
Mr'. Tooley immediately fenced his ground, his south fence being 414.3 feet south of the north line of the forty. His west fence is on the east side of a public road, and is twenty-one feet east of tb,e west line of the forty, and his enclosure two hundred and five or two hundred and five and a half feet east and west, and contains a few superficial feet less than two acres. He has lived on the land, sometimes leasing the south end, ever since. He says in his testimony,' and there is no attempt to weaken or dispute it, that Mr. Hinkle himself measured his ground, placing a stone at the southeast corner, and that he built the fence on those lines, where it still remains.
March 18, 1882, the Hinkles conveyed to William E. Brinkerhoff and George Cunningham by warranty deed, the entire forty, “except two acres in the northwest corner of said tract, containing- thirty-eight acres more or less.”
November 1, 1898, Brinkerhoff and Cunningham and their wives conveyed to Wm. Watson two acres of land beginning at “the southwest corner of F. M.
The Wades, in 1902, sold one hundred and fifty-six feet off the north side of the tract so purchased by them to J. S. Walker, and the remaining one hundred, and fifty-six feet to Mrs. Spiker, who is, with her husband, ^defendant in this case. They claim that their south line is four hundred sixteen feet south of Mr. Tooley’s fence, or eight hundred and thirty and three-tenths feet south of the north line of the forty, leaving-four hundred eightv-eight and seven-tenths feet between their south line and the south line of the forty, of no part of which are the defendants in possession.
The plaintiffs claim under deeds dated September 1, 1902, and October 7, 1902, from Brinkerhoff and Cunningham and wives respectively, in each of which the land is described as follows: “Beginning- at the southwest corner of the southwest quarter of the southwest quarter of section thirty (30) in township number twenty-eight (28) of range number thirty-two (32), and running- thence north on the section line four hundred and eighty-six (486) feet more or less to the southwest corner of tract of land sold by grantor to Wm. Watson, thence east two hundred and eight (208)
Two or three years before the trial the defendants employed one Grieb to make a survey of the locality. He testified that he “found what they said was the well mentioned in the deed from Hinkle .to Tooley, ’ ’ and made a survey in which he discovered that the land described in that deed should measure 226.5 feet east and west, and 384.6 feet north and south, so that Tooley’s fence is 29.7 feet too far south.
At the close of the evidence, in which the foregoing facts were undisputed, the defendants asked a peremptory declaration of law in their favor, which was refused.
The court, in substance, declared the law to be that if Tooley, at the time of the conveyance from Brinkerhoff and Cunningham, had acquired title to his •enclosure by adverse possession, the plaintiffs should not recover.
OPINION.
This ease seems to have been tried by the circuit •court upon the theory that the rights of the plaintiffs and defendants rested entirely upon the question whether or not F. M. Tooley had acquired title by adverse possession to certain land inside his fence. The declarations of law given by the court were di-, xected exclusively to those legal principles' which ■should govern the trial of that issue. The court seems to have assumed that Mr. Tooley, between whom and the litigants there is no privity of estate, could, by disclosing his state of mind while in the occupancy of this land, make or break the case of either of them.
The only question to be determined is the meaning of the words “F. M. Tooley’s tract of land” as
On some such theory as this the right of defendants to the possession of the land in suit seems to have been tried vicariously in the person of Tooley. It would seem to follow that in the opinion of the circuit court, if Tooley’s title to his entire tract should fail, then the title of every purchaser who had taken conveyance by descriptions dependent upon reference to “Tooley’s tract of land” would fail with it.
It will be noted that this description avoids carefully any reference to Tooley’s deed. That instrument is not made a part of the Watson deed in any manner whatever, but the land itself which the parties chose to describe as “Tooley’s tract of land” is made a part of it, and this whole controversy turns upon the question, What did they indicate by that description?
Were this suit against Tooley, for the land included in his enclosure, his bare possession would sup
They attempt here to meet that burden by showing that Tooley claims under a deed, and that the deed does not describe a portion of the land which is within Ms enclosure; so that the question is presented whether or not the reference in the Watson deed is to the unmarked boundaries of a survey corresponding to the description in Tooley’s deed, or to the monuments and fences established by the parties to that deed at the time possession was delivered and received, and which had then been in existence more than seventeen years. In answering this question we must take into consideration certain well established rules, according to which the Mtention of the parties is ascertained and expressed in relation to the establishment and perpetuation of the boundaries of land. Among the elements to be considered in the application of these rules are natural and permanent monuments, artificial marks, courses and distances and area; usually taking precedence in the order named. [Whitehead v. Ragan, 106 Mo. 231, 235.] Although area, or quantity, is perhaps the most yielding of all these, it sometimes becomes, as we shall see, the controlling element of the inquiry. [Cole v. Mueller, 187 Mo.
In Jasper county the government survey constitutes a convenient standard for the description and measurement of land but its lines can only be found by reference to the visible monuments, both natural and artificial, which have been established for that purpose. These, in thickly settled communities, and especially in cities, become obliterated, and their places are supplied by houses, fences and other visible things that have been planted or adopted for that purpose. When this has been done they may be used as landmarks for all, and their removal does not, of course, remove the land that has been bought and sold with reference to them. As to these monuments, this -court, in Jones v. Poundstone, 102 Mo. 244, said: “These stakes originally planted by Lloyd are monuments, and they determine the true corners of the mining lots. These lots were marked off on the surface of the land, and the lines thus fixed do not change with every new survey. Subsequent surveys will aid in finding lost corners, but where, as here, the old established corners are well known they must control.”
In Whitehead v. Ragan, supra, the court, after remarking that the plat with reference to which the deed to a lot is made, in legal construction becomes as much a part of the deed as if it had been fully incorporated in it, said: “While the deeds, under which plaintiff claims title to lot 1 in the subdivision, must be construed as describing the land conveyed as being of the full length shown by the plat, it does not follow that the particulars of the description contained in the plat are conclusive of the correctness of such description. The plat is only intended to be a representation of the actual survey as made upon the land itself. It is in the nature, of a certified copy of an instrument which will be controlled by the original.”
These cases .suggest questions relating primarily to the rights of adjoining proprietors under arrangements which seem to have originated in a desire to protect themselves against future surveys, made, perhaps, after all other landmarks than the indicia of their own possession will have become obliterated. There is no reason why their neighbors, and others dealing with them in full view of the physical facts, should seek to interfere, or to overturn the conditions created by the only parties in interest.
The class of land descriptions to which the one now under consideration belongs is purely conventional, and depends upon the recognition of the public. As was said by this court in Marvin v. Elliott, 99 Mo. 616, 621: “The law is well settled that land may be conveyed by a description or appellation by which it is well known in the neighborhood, and that parol evidence will be received for the purpose of showing that it is well known by the description by which it is designated in the deed.” If it may be so conveyed, it goes without saying that the same description or appellation may be used to designate it where it is sim-. ply an incident to the description of other land. The words “Tooley’s land,” or “Tooley’s tract of land,”
In Cole v. Mueller, supra, it had under consideration a deed in which the land conveyed was described as “ten acres more or less in the southeast corner of the northwest quarter of the northeast quarter, and more particularly described as being bounded on the north and west by land formerly owned by Salathiel Cole.” There were two tracts of land which had formerly belonged to Salathiel Cole, both of which belonged to the grantor. The description in the deed, when it had gone far enough -to reach the boundary line of the first tract, would include five acres, but in all other respects the conformity to the description of the deed would be perfect. If it included this first tract of land “formerly owned by Salathiel Cole” and went on to the next tract which would answer that same description, it would include ten acres. This court held that in explaining this ambiguity the other calls of the deed should be taken into consideration, and that the call for ten acres more-or less indicated the intention of the parties to disregard the first boundary line that came within its description, and to con
The deed from Brinkerhoff and wife to Mrs. Whit-well is dated September 1, 1902, and was recorded on October 6, 1902. At both those dates the land was subject to a.mortgage owned by Mr. Brinkerhoff, which conveyed also the two acres conveyed to Watson, and, of course, it should be satisfied at or before the delivery of the deed to Mrs. Whitwell. In the entry of the satisfaction, he described the length of the tract he was releasing as being 902 feet, more or less, from the southwest corner of the forty to the south line of “Tooley’s land,” and in his own deed to Mrs. Whitwell, recorded at the same time, he described the land conveyed as beginning at the southwest corner of the forty and running north 486 feet, more or less, to the southwest corner of the land sold to William Watson. Adding about 416 feet, the length of the Watson tract according to the deed, makes 902 feet, the distance stated in the satisfaction .of the mortgage. This is within about two feet of the distance given by the surveyor who testified for plaintiff as the result of his own measurement from the south line of the forty to Mr. Tooley’s south fence, and indicates beyond doubt that having taken twenty years to think about it after his acquisition of the land, Mr. Brinkerhoff was willing to take Tooley’s fence as the basis for his deed to Mrs. Whitwell. Mr. Cunningham adopted the same measurement in his deed made to her the next day, so that all the parties to the transaction—-Mrs. Whitwell, Mr. Cunningham and Mr. Brinkerhoff—at the time of making the deed under, which plaintiffs in this suit claim, interpreted the words “Mr. Tooley’s tract of land”' to be the land enclosed within his fence. -Those words implied no assertion of title, but simply of reputation and recognition by the parties. [McKeon v. Millard,
For the reasons stated we do not think that Mrs. Whitwell, by her deeds from Brinkerhoff and Cunningham, took any title to the land in controversy. The facts upon which this conclusion is founded standing admitted in the record, we do not see what good purpose can be served by another trial, and the judgment of the_Jasper Circuit Court is therefore reversed.
Concurrence Opinion
foregoing opinion of Brown, C., is adopted as the opinion of the court.