24 S.W. 211 (Mo. 1893), Harding v. Wright

Citation:24 S.W. 211, 119 Mo. 1
Opinion Judge:Gantt, P. J.
Party Name:Harding et al., Appellants, v. Wright
Attorney:E. R. Lentz for appellants. J. C. Sheppard for respondent.
Case Date:December 16, 1893
Court:Supreme Court of Missouri
 
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Page 211

24 S.W. 211 (Mo. 1893)

119 Mo. 1

Harding et al., Appellants,

v.

Wright

Supreme Court of Missouri, Second Division

December 16, 1893

Appeal from Mississippi Circuit Court. -- Hon. H. C. O'Bryan, Judge.

Reversed and remanded.

E. R. Lentz for appellants.

(1) The effect of the deed offered in evidence by the plaintiffs was to convey to plaintiff, Mary Harding, all the land lying between the point of beginning and the east line of the lot then owned by defendant, E. W. Wright, whether the same be eight feet or sixteen feet, and in this respect it mattered not whether her deed was recorded or not. The language of the deed is plain and certain, and cannot be contradicted or explained by parol testimony. Whittlesey v. Kellogg, 28 Mo. 404; Jennings v. Brizeadine, 44 Mo. 334; McCafferty v. Conover, 7 Ohio St. 99; Campbell v. Johnson, 44 Mo. 250; Smith v. Catlin Land & Imp. Co., 117 Mo. 438. (2) The defendant is not protected as an innocent purchaser without notice of plaintiff's claim, because of the fact of plaintiff's deed not being on record, because he himself says that he knew that Hardings had a deed and were claiming all the strip of land in controversy before he took the deed from Ferguson. (3) Testimony of Martin Ferguson is set out in defendant's application for a continuance, was incompetent, irrelative and immaterial and should have been excluded. The court committed error in admitting the same. 1 Greenleaf's Evidence, sec. 275; Jennings v. Brizeadine, 44 Mo. 334; Campbell v. Johnson, 44 Mo. 250; McCafferty v. Conover, 7 Ohio St. 99; Jones v. Shepley, 90 Mo. 313; Koehring v. Muemminghoff, 61 Mo. 407; Murdock v. Ganahl, 47 Mo. 137; Lumber Co. v. Warner, 93 Mo. 384. (4) The declaration of law given by the court at the request of the defendant proceeds upon the theory that the effect of the deed read in evidence by plaintiff could be varied or contradicted by parol testimony. It is, therefore, not the law and should not have been given. For this error, the judgment should be reversed. See same authorities cited under third point. (5) The declaration asked by the plaintiffs, and refused by the court, presents the true theory of this controversy and should have been given and followed by the court in rendering its judgment. For error in not doing so, the judgment should be reversed. (6) The judgment is contrary to law and against all the competent testimony in the case. Judgment should have been for the plaintiffs instead of the defendants.

J. C. Sheppard for respondent.

(1) While parol evidence cannot be received to prove that the parties intended something different from that which the language of the deed expresses, yet if the language used in the description is uncertain and doubtful, the practical construction given to the deed by the subsequent acts of the parties may be shown by parol. Wolf v. Dyer, 95 Mo. 545. The general rule seems to be that in all cases where a difficulty arises in applying the words of an instrument to the subject-matter, it is proper to remove the ambiguity by the introduction of extrinsic evidence. King v. Fink, 51 Mo. 209. (2) The intention of the parties to a contract should control in its interpretation. Jennings v. Brizeadine, 44 Mo. 332; Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopiano, 48 Mo. 194; Belch v. Miller, 32 Mo.App. 387. (3) The words "more or...

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