30 S.W. 121 (Mo. 1895), Clark v. St. Louis Transfer Railway Company

Citation:30 S.W. 121, 127 Mo. 255
Opinion Judge:Burgess, J.
Party Name:Clark v. St. Louis Transfer Railway Company, Appellant
Attorney:Thomas E. Ralston and Alonzo C. Church for appellant. Seddon & Blair for respondent.
Case Date:March 05, 1895
Court:Supreme Court of Missouri
 
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Page 121

30 S.W. 121 (Mo. 1895)

127 Mo. 255

Clark

v.

St. Louis Transfer Railway Company, Appellant

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Affirmed.

Thomas E. Ralston and Alonzo C. Church for appellant.

(1) The court erred in refusing to permit defendant to strike out of its answer the erroneous admission as to possession contained in such answer. Carr v. Moss, 87 Mo. 447; Waverly Timber Co. v. Cooperage Co., 112 Mo. 383. (2) Considered as an action of ejectment simply, independent of defendant's character as a public railroad corporation the court erred in rendering judgment for plaintiff for any land whatever. (3) The evidence showed erroneous calls in the deed and plat, and the plat contrives the deed under the circumstances of this case and the "stone" indicated within the lines shaded in red on the plat and the stakes set in accordance therewith control the plat, particularly as Clark offered to sell "as platted" which offer was not accepted until after the stakes were set as Clark demanded. (4) Where a natural monument is shown by a plat annexed to a patent as being within the lines of the patent, the land must be so surveyed as to include the natural monument, and conform as nearly as may be to the plat, although the lines thus run do not correspond with the courses and distances mentioned in the patent, and which would not include the natural monument, and although neither the certificate of survey, nor the patent, calls for such natural monument. McIver's Lessee v. Walker, 9 Cranch, 173; McIver's Lessee v. Walker, 4 Wheat. 445; Shelton v. Maupin, 16 Mo. 124; Myers v. City, 82 Mo. 373. (5) The always pays greater regard to the intention of the parties than to the particular words used to express that intention. Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopiano, 48 Mo. 194; Rutherford v. Tracy, 48 Mo. 325; Thompson v. Thompson, 115 Mo. 56; Leitensdorfer v. Delphy, 15 Mo. 161; Ford v. Beach, 11 Q. B. 866. (6) The intention of the parties having been ascertained from the deed, the plat, the possession taken by defendant and the evidence in the cause, this court will be astute in order to carry out such intention and prevent such wrong, hardship and injustice as will inevitably result to defendant by allowing the judgment and decree of the court below to stand. Ford v. Beach, 11 Q. B. 866; Agan v. Shannon, 103 Mo. 661; Kronenberger v. Hoffner, 44 Mo. 185. (7) This case considered as an action of ejectment against a public railroad corporation, the plaintiff should not have been allowed to recover. Clark stood by, after having examined the premises with the plat in his possession, and before the sale, with full knowledge of the location of his ancient "line stone" indicated on the plat and of the expense incurred by defendant in building its road, for about seven years, and only after he had sold his land to the west of this right of way to Marcus A. Wolf, in trust for the Wiggins Ferry Company, the largest stockholder of defendant, did he complain. Under these circumstances Clark is estopped by deed, license, acquiescence and the public policy of the state of Missouri from recovering, in ejectment, any portion of the right of way occupied by defendant, either on the ground that the mistaken calls for distance to Hall street and First street controlled the other clauses in the deed and plat, and the plat itself, and the "stone" therein mentioned, or otherwise. Dodd v. Railroad, 108 Mo. 581; McClellan v. Railroad, 103 Mo. 295; 2 Wood on R'ys [Ed. 1894], ch. 14, p. 924; Goddin v. Canal Co., 18 Ohio St. 169; Railroad v. Allen, 113 Ind. 581. (8) This makes a case of reformation on the ground of mutual mistake. Snell's Principles of Equity, pp. 372-375; Leitensdorfer v. Delphy, 15 Mo. 160; Cassidy v. Metcalfe, 66 Mo. 519; Griffith v. Townly, 69 Mo. 13; Flynn v. Herye, 4 Mo.App. 360. (9) Though the sale of the right of way was made "as platted," yet there is a latent ambiguity in the plat, and the intended boundaries will in all cases govern if the parties believe the description used in the deed corresponds with the boundaries, although the exact language intended to be used was used both in the contract of purchase and in the deed itself. 2 Pom. Eq. Juris. [2 Ed.], sec. 853; Johnson v. Taber, 10 N.Y. 319; Bush v. Hicks, 60 N.Y. 292; May v. Adams, 58 Ver. 74; Butler v. Barnes, 60 Conn. 170; Co. v. Marshall, 59 N.W. 294.

Seddon & Blair for respondent.

(1) The reformation of a deed for mistake will not be granted, unless the mistake be shown to have been mutual, and unless it shall be established by such proof as to leave no reasonable ground for hesitation in the chancellor's mind. Pomeroy's Equity Jurisprudence [2 Ed.], sec. 859; Adams' Equity [8 Ed.], p. 170. (2) It is not sufficient that the party asking relief should prove a mutual mistake. He must show what the real agreement was. This may be established however, by a preponderance of evidence. Guelmartin v. Urquhart, 82 Ala. 570; St. Anthony v. Merriam. 35 Minn. 43. (3) The lower court found for the plaintiff on defendant's crossbill. The evidence was clear. Even if it had been conflicting, the trial court saw and heard the witnesses and could weigh the evidence as well if not better than this court. Its findings will be respected, unless they are clearly shown to be erroneous. Mathias v. O'Neill, 94 Mo. 520; Benne v. Schnecko, 100 Mo. 250. (4) If there was a mistake in inserting a wrong description, the defendant's occupation, as shown by this cross bill (after striking out the express admission) does not correspond with the description it wishes to be inserted in the deed, and the defendant either knew that the descriptions were wrong (if, in fact, they are, which we deny) or was guilty of gross negligence in not knowing it. Courts of equity will not relieve under such circumstances. Durkee v. Durkee, 59...

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