Taylor & Mason v. Zepp

• Citation: 14 Mo. 482
• Parties: TAYLOR & MASON v. JOHN & JACOB ZEPP.
• Decision Date: 31 March 1851
• Court: United States State Supreme Court of Missouri

14 Mo. 482

TAYLOR & MASON

v.JOHN & JACOB ZEPP.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This was an action of ejectment, tried in the St. Louis Court of Common Pleas, May 1st, 1850. On the trial of the cause, the plaintiffs gave in evidence a patent from the United States, to Joseph Papin, for the northwest fractional quarter of section five; and the southwest detached part of the southwest fractional quarter of section twenty-six, township forty-five north, range seven east, in district of lands for sale at St. Louis, containing twenty-seven and twenty-nine hundredth acres, according to the official plat of the survey. The official survey under the patent was also read, and a deed, from Joseph Papin to the plaintiffs, for the same land, described in the patent excepting what the grantor had heretofore conveyed to Isaac Walker, and what he had before conveyed to Larkin Deaver.

The plaintiffs proved by William H. Cozzens the location of the premises; and, that if thirteen and sixty-five hundredths acres were taken from the northern part of the premises (and that should be the true construction of the deeds hereinafter mentioned) defendants were in possession of three and ninety-two hundredths acres south of a line which would embrace that quanlity. The quantity included in the patent, is, according to the survey, thirty-one and sixty-five hundredths acres. By reference to the annexed plat it will be seen that the part shaded pink, or red, is the part which the plaintiffs claim to have been conveyed.

The defendants then gave in evidence, a deed from Joseph Papin to Larkin Deaver, of which the following is the description:

All that certain piece or parcel of land, lying and being situate in the county of St. Louis, aforesaid, with the appurtenances, and containing thirteen acres and sixty-four hundredths and a half of an acre, and being in the northern part of a tract of land, being the northwest fractional quarter of section 35, and the southwest detached part of the southwest fractional quarter of section 26, in township 45 north, of range 7 east, in the district of lands offered for sale at St. Louis, Mo., containing twenty-seven and twenty-nine hundredths acres, as appears by a patent issued in favor of said Joseph Papin, No. 1148.

A deed from Larkin Deaver and wife, to Isaac Walker, describing the premises as follows:

A piece or parcel of land, &c., containing thirteen acres and sixty-four hundredths of an acre, and being the northern part of a tract of land, being the northwest fractional quarter, &c., as in last deed. Defendants are tenants of Isaac Walker.

Jacob Smith was then called as a witness, and testified, that he was applied to by Papin and Walker to divide the land between them--was county surveyor at the time. At the request of both he made a survey, and run a division line between them. He made a return of a survey to each of them, and being shown one of his surveys identified it, and it was read in evidence. He applied at the surveyor-general's office for information in relation to the government survey of the land, and obtained a copy of the field notes. When he made his survey, it corresponded with the original survey exactly. In making the survey he ran round the lines of the whole tract, and then divided equally between the parties that which was east of the commons' line. Walker took possession of the part then allotted to him, according to the survey of witness. Survey was made June 16th, 1842. Witness gave to each fourteen and fifty-two one-hundredth acres. In 1845 witness made a survey for Joseph Papin, laying off his part into blocks and lots, as an addition to St. Louis. At the time of the last survey, Walker's fence was on the division line as before established. When witness made this survey for Papin he made out for him a plat, to be filed in the recorder's office. A certified copy of the plat was produced, and the part so represented on the plat by the words “Isaac Walker,” is Isaac Walker's land, according to the division line made by witness. When witness made the survey there was a fence north of the division line seen by witness, but he could not state how far north; there had been a garden there. Said plat of Papin's addition was duly acknowledged, and recorded in the recorder's office, and was given in evidence by defendants, its northern boundary being said division line run by Smith, and Walker's name appearing within on the north of said line as indicating that space to be his land. Defendants gave in evidence a deed from Joseph Papin to Isaac Walker for two lots in Papin's addition. The only part material is the following part of the description: Bounded north by land of said Walker, west by an alley, south by a cross-street, &c. The two lots conveyed by Papin to Walker were narrow strips, lying along said division line, on the south of it, and separating the land marked on the plat as Walker's from a street, as laid down on the said plat of addition.

The court refused the following instructions asked by the plaintiffs: 1. If the jury believe from the evidence that the patent from the United States to Papin and his deed to plaintiffs were duly executed, and that the defendants in possession of the land marked on the survey of Cozzens between the line marked as the board fence and the line shaded red, next north of the dotted line, they will find for the plaintiffs, for the land included in said lines west of Carondelet avenue, being about two hundred feet on Carondelet avenue, and extending west to the west line of the southwest detached part of the southwest fractional quarter of section 26, in township 45, as represented on the plats and surveys in evidence. 2. If the court refuse the first instruction asked by plaintiffs and give the instruction asked by the defendants, the plaintiffs then ask the following: The land described in the patent to Joseph Papin is to be equally divided between the plaintiffs, grantees of Papin and Isaac Walker, under whom the defendants hold, and the plaintiffs, upon the true construction of all the deeds, are entitled to the south half of said premises. 3. The jury are instructed that, to make a parol agreement, fixing a line between parties which shall control their rights, conclusive, between the parties in a case when the location under the deed is clear and unambiguous, such an arrangement must be a new, distinct and independent agreement, founded on some new or distinct consideration.

The court gave the following instructions asked by the defendants: 1. That if the jury find from the evidence that Joseph Papin and Isaac Walker, claiming title to the land patented to Joseph Papin under title papers given in evidence, agreed to make a division between them, and establish a division line between the land to be held by them, and for that purpose requested Jacob Smith, county surveyor of St. Louis county, to make such division and establish such line, and that he did accordingly establish, as a division line, a line which divides the land east of the line of the commons of St. Louis, assigning to Walker the land north of such line, and to Papin the land south of such line; and if they further find that such division line was reported by said surveyor to both of said parties, and a plat thereof furnished to both of them; and if the jury further find from the evidence that both parties acquiesced in the said line, and that Joseph Papin subsequently laid out the portion of the land thus assigned to him into lots and streets, as an addition to the city of St. Louis, and filed a plat of such addition in the recorder's office of St. Louis county, acknowledged, as is shown by the copy given in evidence, that such addition has for its northern line the line established as division line, as aforesaid; and if they further find that the said Papin sold and conveyed to the said Walker two lots of ground in the said addition, and that the call in his said deed for said lots, for the northern boundary of said lots, is for the land of said Walker, and that such lots, when laid out and surveyed, were laid out and surveyed with the division line as run by Jacob Smith, as their northern boundary; and if the jury shall further find that the defendants have never been in possession of any land south of such division line; and if they shall further find that at the time of the conveyance from said Papin to the said plaintiffs, Walker and those claiming under him were in possession according to the division line as established by said Smith, then the plaintiffs are not entitled to recover. A verdict was found for defendants, and plaintiffs brought error.

HAIGHT, for Appellants.

I. The location of the premises, under the deeds in evidence, is free from doubt or ambiguity. Thirteen and sixty-five hundredths acres is to be taken from the northern end of the tract, included in the patent, by a line parallel to the north line of the land included in the patent.

II. If there is any doubt whether the deeds given to the landlord of the defendants, Isaac Walker, the said quantity mentioned in the first point, or one-half of the patented tract, the doubt is one of legal construction, arising on the face of the deeds, and not one as to location in fact, and in any event makes no difference. Setting off one-half by a line parallel to the north line of the land embraced in the patent, will come to nearly the same result. No agreement or acquiescence is claimed or can be on this question. The defense is, that Papin, under whom plaintiffs claim, assented to a survey, excluding that within the commons from such survey, and laying off the northern half by a line parallel to the north line, and extending this line so far south as to make up for that portion really conveyed, to which it was supposed the title might be defective. This is sought to be done by acquiescence, as a distinct fact, or as evidence of an agreement, resting...