Carter v. Foster

• Citation: 47 S.W. 6,145 Mo. 383
• Parties: CARTER v. FOSTER et al.
• Decision Date: 06 July 1898
• Court: United States State Supreme Court of Missouri

47 S.W. 6

145 Mo. 383

CARTER v. FOSTER et al.

Supreme Court of Missouri, Division No. 1.

July 6, 1898.

MORTGAGE — CONSTRUCTION — PROPERTY COVERED.

A deed of trust of a lot described it by metes and bounds, including the whole lot, but by a subsequent recorded agreement the north 30 feet were excepted, subject to a city ordinance providing for the opening of a street, which agreement also provided that the proceeds of the condemnation proceedings should be applied on the debt secured by the deed. The city thereafter abandoned the street proceedings, which thereupon, by its charter, became wholly void. The entire lot was conveyed subject to the trust deed by various conveyances not mentioning the exception, to R., when it was sold under foreclosure of the trust deed to defendant; and thereafter R. conveyed the excepted 30 feet to plaintiff. Held, that the 30 feet were excepted from the trust deed only subject to the city ordinance, and that, after the proceedings were abandoned, it passed under its foreclosure to defendant.

Appeal from circuit court, Jackson county; Charles L. Dobson, Judge.

Action by Alexander Carter against J. Taylor Foster and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Kinley, Carskadon & Kinley, for appellant. Brumback & Brumback, for respondents.

ROBINSON, J.

This is an action of ejectment, instituted in the Jackson county circuit court, to recover a strip of land 30 feet wide from north to south, and 144 feet long from east to west, fronting 30 feet on the west side of Holmes street. This 30-foot strip is the north portion of a larger strip, fronting 76 feet on the west side of Holmes street, in Kansas City. The suit was originally begun against the defendant Foster alone, J. C. Havemeyer being, on his application, made party defendant. The petition is in the usual form, alleging ouster on December 9, 1894. The defendant Foster answered, admitting possession of the premises, but denying all other allegations in the petition contained. The answer of defendant Havemeyer set up that Foster was in possession of the premises in question, as his tenant, and denied all other allegations of the position. There was no reply. J. F. Bayless is the common source of title. On the 16th day of February, 1889, said Bayless, being the owner of the entire 76-foot strip, executed his deed of trust to Samuel Foster, trustee for C. R. Hicks, to secure a note for $5,000, payable in three years after date thereof to said Hicks, together with six interest coupon notes. The deed of trust described the entire 76-foot strip by metes and bounds, so as to include the 30 feet in controversy, and at the end of such description the following superadded words appeared: "Being the land conveyed by W. Ewing Hall and wife to Catherine McCrystle Williams, by deed dated October 14 1880, and recorded in Book B24, page 512, excepted that part thereof taken for Holmes and 23rd streets." At the time the Bayless deed of trust was executed, a proceeding begun by the city of Kansas City to condemn the 30-foot strip, for a part of Twenty-Third street, was pending; but afterwards, and before the deed of trust was foreclosed, the condemnation proceedings were abandoned, whereby the right of the city to condemn the 30-foot strip was forfeited, so that the strip in question never was taken for street purposes. By section 5, art. 7, of the city charter of Kansas City of 1875, it is provided that if a verdict of the jury, when reported to the common council by the mayor, shall not be confirmed, etc., within 60 days after the proceedings, it shall be wholly void. It appears from the record that on February 9, 1889, five days before the deed of trust was executed, the city of Kansas passed an ordinance providing that the 30-foot strip should be taken for Twenty-Third street, directing that proceedings be had to assess the damages and benefits. Process was served on J. B. Boyd, who owned the 76-foot strip before Bayless acquired it. On July 18th following, a jury to assess damages and benefits was impaneled, and on September 10th the jury filed their verdict. On September 16th the verdict was submitted to the city council, and on the same day an ordinance was introduced to confirm the verdict. This ordinance, however, was never passed, and consequently the verdict was never confirmed. No further proceeding seems to have been taken under the ordinance; and by the charter all proceedings, as well as the ordinance itself, were vitiated by reason of the failure to confirm the verdict within the time provided in the charter. The application for the loan secured by the deed of trust was made by Boyd, who conveyed the premises to Bayless before the loan transaction was finally consummated. Thereupon Bayless signed the deed of trust, the loan, however, being made in pursuance of the application made by Boyd. In this application it is stated, in substance, that he (Boyd) offered, as security for the loan, 76 by 144 feet in N. W. ¼ of S. E. ¼, township 49, range 33. Shortly after the date of the deed of trust, Bayless executed an agreement, which was afterwards recorded, by the terms of which it was agreed that "any and all sums that may be awarded as the damage taken for the north thirty feet of said property, in the opening and establishing of 23rd street, under ordinance heretofore passed by said city of Kansas, be paid to said Hicks, or to his assigns of said notes and interest coupons, the same, however, to be applied in part payment thereof." The agreement provided, as the reason for directing the payment of said damages, that "whereas, James F. Bayless, of Douglass county, Kansas, is the owner in fee of the following described real estate, in the county of Jackson, and state of Missouri, to wit [here follows the description of the whole seventy-six feet by metes and bounds], excepting, however, a strip taken from the E. end thereof by the city of Kansas City, Mo., in the widening and opening of Holmes street, excepting, further, the N. thirty feet thereof is subject to an ordinance which has been enacted by said city of Kansas, providing for the opening and establishing of 23rd street; and whereas, said James F. Bayless did heretofore borrow of Charles H. Hicks, of Kansas City, Missouri, the sum of $5,000.00, for which he, the said Bayless, and Mary R. Bayless, his wife, executed and delivered to said Hicks one coupon note, * * * said coupon note and interest coupons being secured on the above-described real estate, with the exception as stated, as evidenced by deed of trust of record in the office of the recorder of deeds of Jackson county, Missouri, at Kansas City, dated February 14th, 1889, and executed by the said James F. Bayless and Mary R. Bayless, his wife, to Samuel Foster, trustee for said Charles Hicks: Now, therefore, in consideration of the premises, I, the said James P. Bayless [here follows agreement for paying condemnation money to Hicks or his assigns, as above stated]." On May 15, 1889, Bayless, by deed in form a warranty, conveyed to F. W. McCabe the entire 76 feet, describing it by metes and bounds, "excepting, however, so much of said tract as may have been taken from the E. end thereof, for and as a part of Holmes street, subject to the Bayless deed of trust." On July 16, 1889, F. W. McCabe conveyed to J. E. McCabe the entire 76 feet, describing it by metes and bounds, without, however, mentioning or referring to either Holmes or Twenty-Third streets. This deed was subject to an incumbrance of $5,300 and any interest which may have accumulated thereon. On the 25th of August following, J. E. McCabe conveyed, by a warranty deed, to M. J. Richards, the entire 76 feet by metes and bounds, not mentioning Holmes or Twenty-Third street. This was also subject to the Bayless deed of trust. Default having been made in the interest coupons maturing in August, 1891, the trustee named in the deed of trust on September 26, 1891, sold the entire 76 feet, in accordance with the power contained in the deed of trust, to the defendant Havemeyer, and delivered to him a trustee deed therefor in usual form, who thereupon took possession of the whole 76 feet, renting it to various tenants as one parcel. On the 15th day of April, 1893, said Richards, by quitclaim deed, for the recited consideration of $50, conveyed to plaintiff the 30-foot strip in controversy, describing same by metes and bounds. This deed also recited that Richards assigned to plaintiff all damages awarded, or that might be awarded, for taking said tract for opening Twenty-Third street. The evidence shows that the entire 76 feet was fenced as one parcel, and had been so fenced and used for 8 or 10 years; that the house situated on the whole tract extended over on the 30-foot strip 4 or 5 feet. The circuit court, in its special finding of the facts, made at the instance of the plaintiff, found that it was the intention of the parties to the deed of trust under consideration to except from the operation thereof only such right or easements as the city had acquired or might acquire for the street purposes, and thereupon refused a peremptory instruction for the plaintiff, and gave an instruction in the nature of a demurrer to the evidence for defendants, and rendered judgment accordingly, in favor of defendants, from which the plaintiff duly appeals to this court.

The only question presented by the record for our determination is as to the proper construction of the above-quoted clause in the Bayless deed of trust. The...