Brown v. Gibson

• Citation: 82 Mo. 529
• Parties: BROWN, Plaintiff in Error, v. GIBSON.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

82 Mo. 529

BROWN, Plaintiff in Error,

v.GIBSON.

Supreme Court of Missouri.

October Term, 1884.

Error to Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

C. O. Tichenor for plaintiff in error.

In case of doubt as to the quantity conveyed by a deed, words of doubtful import are to be construed most favorably to the grantee. Winslow v. Patten, 34 Me. 25; Clemens v. Rannells, 34 Mo. 584; Nelson v. Brodback, 44 Mo. 596. The rule is, that a line simply from one point to another, must be straight and must run in the shortest and most direct way. Washburn on Real Prop., § 43, side p. 632. What are the boundaries is a matter of law; ( Whit tesey v. Kellogg, 28 Mo. 404;) and a surveyor cannot testify to the legal interpretation to be given a survey. Ormsby v. Ihson, 10 Casey 462; Blumenthal v. Roll, 24 Mo. 113. The deed must give a sufficient description, and parol evidence cannot control it. Orr v. How, 55 Mo. 329; Means v. La Vergne, 50 Mo. 343; King v. Fink, 57 Mo. 209.

P. S. Brown pro se.

1. Where the statute prescribes the form of a tax deed the form becomes substance, and must be strictly pursued, or the deed will be void. Grimm v. O'Connell, 54 Cal. 522; Lain v. Cook, 15 Wis. 446; Wakely v. Mohr, 18 Wis. 321; Williams v. McLanahan, 67 Mo. 499; Dunlap v. Henry, 76 Mo. 106; Larkin v. Wilson, 28 Kas. 513; Pack v. Crawford, 29 Ark. 489; Harrington v. City of Worcester, 6 Allen 576; Hubbard v. Johnson, 9 Kas. 632. 2. Objections to a deed on the ground of being void where trial court's attention is thereby called directly to face of deed, is sufficient, without specifically pointing out each reason. Larkin v. Wilson, 28 Kas. 514; McLaurine v. Monro, 30 Mo. 462. 3. The three years' limitation provided in section 66 of said article 6, Laws of 1875, page 239, does not apply to a deed void on its face. Watterson v. Devoe, 18 Kas. 223; Sheehy v. Hinds, 27 Minn. 259; McGavock v. Pollock, 13 Neb. 535.

C. A. Kenyon and J. W. Snyder for defendant in error.

1. All the descriptive parts of a deed are to be construed together, especially when so related as here. 4 Greenl. Cruise, 338 and note; Thatcher v. Howland, 2 Metc. 42; Bosworth v. Sturtevant, 2 Cush. 391; Jamison v. Fopiano, 48 Mo. 194; Gibson v. Bogy, 28 Mo. 478; Evans v. Green, 21 Mo. 170; Krouenberger v. Hoffner, 44 Mo. 185; Bower v. Earl, 18 Mich. 375; 2. The acts of the parties and the circumstances attending conveyance, and their subsequent conduct in reference thereto, may be resorted to to determine the location of a line to which the deed refers, when the description is ambiguous or uncertain. Krouenberger v. Hoffner, 44 Mo. 185; Bower v. Earl, 18 Mich. 367; Jackson v. Vedder, 2 Caines 210; Schmitz v. Schmitz, 19 Wis. 210; Hall v. Davis, 36 N. H. 573; Foule v. Bigelow, 10 Mass. 379; Hoven v. Brown, 7 Greenlf. 421; Jackson v. Wood, 13 John. 348; Livingstone v. Ten Broek, 16 John. 482; Van Gorden v. Jackson, 5 John. 14; Safret v. Hartman, 7 Jones (N. C.) L. 202.

HENRY, J.

Plaintiff sued in ejectment to recover the parcel of land embraced within the triangle def. of the following diagram:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The petition is in the usual form. The answer is a general denial. At the trial below there was judgment for defendant from which plaintiff has appealed.

The question for determination is, whether line df. or line de. is plaintiff's west line. Plaintiff's evidence consisted of a deed from Allen and wife to Margaret A. McNees for lot 87. A deed from Margaret McNees and her husband, dated April 5th, 1871, to James C. Medsker for a part of said lot 87, described as follows: “Commencing at the southeast corner of said lot and running thence on the east line of said lot to the northeast corner of said lot, thence west on the north line of said lot forty feet, thence south to the south line of said lot, thence east to the place of beginning.” Plaintiff proved title in himself through mesne conveyances by like description, as in said deed to Medsker, except that the words “on the north line of said lot” are omitted. He also proved actual possession of the property in dispute in himself and those under whom he claims from 1868 to March, 1880, the date of defendant's entry.

D. O. Flaherty, county surveyor, testified that east line of said lot, 87, fronting on Cherry street, is fifty-seven and twenty-six one-hundredths feet, the north line one hundred and forty-two feet, and south line one hundred and forty-eight and nine-twelfths feet, that the east line from southeast corner runs north with variation from due north of seventeen degrees west, north line from northeast corner runs south seventy-three degrees west, and the south line runs due east and west, that beginning at a point on north line of said lot forty feet westward from northeast corner, and running thence a line due south to south line of said lot strikes a point on said south line fifty-four and ninety-one one-hundredths feet west from the southeast corner of said lot, that the above diagram made by him from actual survey shows the ground in controversy, being thirteen and ten one-hundredths feet on the south line and comes to a point on north line. That defendant's east line fence extends along the east line of the ground in controversy, the southeast corner of her inclosure being forty-one and eighty-four one-hundredths feet west from southeast corner of said lot. That a survey of the property in accordance with the description in said deed to Medsker, includes the property in controversy.

The court gave the following...