Adkins v. Tomlinson

• Decision Date: 08 May 1894
• Citation: 26 S.W. 573,121 Mo. 487
• Parties: Adkins et al. v. Tomlinson, Appellant
• Court: Missouri Supreme Court

26 S.W. 573

121 Mo. 487

Adkins et al. v. Tomlinson, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

Jere T Dew for appellant.

(1) This was an executed contract and defendant had a right to make his proffered conveyance to plaintiff, his immediate grantee, correcting the error in his former deed -- if it was erroneous, for it was a mutual mistake of fact -- and make it conform to the original contract, and convey to plaintiffs the identical lot, thirty-four and one-half feet frontage that they purchased, of which particular lot possession was given to, and is still held and occupied by, plaintiffs under said deed and in pursuance of said purchase, undisturbed and undisputed by any person, and plaintiffs were bound to accept same. Corrigan v. Tierney, 100 Mo. 276; Reese v Smith, 12 Mo. 344; Barker v. Circle, 60 Mo. 255. (2) This is not a controversy between adjoining proprietors as to a division line; but if it were, then where, as in this case, one takes and holds exclusive possession up to a wall or fence claiming to be the owner, his possession will be adverse. Irwin v. Woodmansee, 104 Mo. 406; Handlan v. McManus, 100 Mo. 124; Cole v. Parker, 70 Mo. 378. (3) And if such division line was established by agreement and possession taken accordingly, it would be binding upon the parties and privies, and acts and conduct, especially long acquiescence of parties are evidence of such agreement. Irwin v. Woodmansee, 104 Mo. 406; Jacobs v. Moseley, 91 Mo. 463; Atchison v. Pease, 96 Mo. 566; Krider v. Milner, 99 Mo. 145; Cole v. Parker, 70 Mo. 378. (4) A written instrument is not necessary to constitute color of title. Even if the west four and one-half feet of said lot were omitted from said deed, yet the open, notorious, exclusive and adverse, and continued possession thereof, and of the whole of said lot, thirty-four and one-half feet frontage, by plaintiffs and their grantors for twenty-five years and more, and the actual occupancy thereof, inclosed and improved as it is, and has been for about fifteen years thus actually occupied by plaintiffs themselves, undisturbed by any person for ten years or more, such possession and occupancy would constitute good, indefeasible title in plaintiffs in and to the whole of said lot, including said west four and one-half feet. Rannels v. Rannels, 52 Mo. 108; Ridgeway v. Holliday, 59 Mo. 444; Cooper v. Ord, 60 Mo. 420. (5) The damages are excessive. Even in case of outstanding paramount title, these covenants of the deed would be only nominally broken, where there has been no actual eviction, and no disturbance of possession, and the damages are at most only nominal. Collier v. Gamble, 10 Mo. 467; Shelton v. Pease, 10 Mo. 473; Reese v. Smith, 12 Mo. 344; Moseley v. Hunter, 15 Mo. 322; Cockrell v. Proctor, 65 Mo. 41; Conklin v. Railroad, 65 Mo. 533. (6) To this erroneous judgment interest was added, which was another error. Hutchins v. Roundtree, 77 Mo. 504, and cases cited.

Karnes, Holmes & Krauthoff for respondents.

(1) Appellant had no title, by limitation or otherwise, to the four and one-half feet adjoining on the west the land described in his deed, and there was no evidence tending to show any such title. Goltermann v. Schiermeyer, 111 Mo. 404. (2) There was no evidence tending to show a division line established by agreement. Coleman v. Drane, 22 S.W. 801. (3) The damages were rightly assessed. Murphy v. Price, 48 Mo. 247; Kirkpatrick v. Downing, 58 Mo. 32; Allen v. Kennedy, 91 Mo. 324; Tong v. Matthews, 23 Mo. 437.

OPINION

Burgess, J.

This is an action for the breach of the covenant of indefeasible seizin contained in a deed from defendant to plaintiff Mary E. Adkins, wife of her coplaintiff, James G. Adkins, dated February 8, 1882. The land described in the deed is a part of lot number 5, in block number 3, of Price's addition to the City of Kansas, and described as follows, to wit: "Beginning at the northwest corner of said lot and running thence east along the south line of Independence avenue, thirty-four feet and six inches; thence south one hundred and twenty-six feet to a private alley; thence west to the west line of said lot; thence north to the place of beginning." The allegation in the petition is that defendant was not seized of an indefeasible estate of the east four and one-half feet of said lot.

The answer, aside from a general denial, alleges that defendant did not in fact sell to plaintiff, Mary E. Adkins, the land described in the deed, but that he really sold her a tract of land of the same size, but lying four and one-half feet further west than the tract described in the deed, of which he claims to be the owner in fee simple, alleging that the error in description was occasioned "by reason of a mistake on the part of the surveyor," and coupled with an offer to re-form the deed aforesaid, and a tender of a new deed, describing the tract of land as alleged to have been intended to be conveyed, with full covenants of general warranty, as of the same date as the original deed. The answer so pleaded that, notwithstanding the alleged error in description, the respondent, Mary E. Adkins, had a good title to the four and one-half feet (for the want of seizin in which the action was brought) by the statute of limitations. The reply was a general denial. A jury having been waived, the case was tried by the court.

At the trial respondents read in evidence the deed sued on, containing an express covenant of indefeasible seizin of the land described in the petition. It was then formally admitted that neither at the date of his deed nor at any time since, had appellant any title whatever to the east four and one-half feet of the land described in the deed; that plaintiffs were never put in possession of the same, and never had possession of the same, and that $ 60 per foot was a reasonable valuation for the property in controversy at the time of appellant's deed.

Defendant testified that he originally owned lot five and that part of lot six which extended eastwardly to the line of Holmes street; that he sold the ground fronting on Holmes street for a butcher shop, and then sold another part of the land to Captain Cannon -- Cannon's land embracing the east four and one-half feet of the land described in defendant's deed to Mrs. Adkins, and that he built a fence along his east and Cannon's west line. He also testified: "I never undertook to give possession of the four and one-half feet on the east side. I knew I did not own that."

Plaintiffs asked no declaration of law and none was given.

Defendant asked two declarations of law, which were refused. They are as follows:

"1. The court declares the law to be that, although defendant did not convey to plaintiff Mary E. Adkins, by his deed to her read in evidence, the whole of the particular lot or tract of land which was intended to be, and was actually, purchased by her, but on account of an erroneous description in said deed omitted about four and one-half feet on the west side of said lot or tract that should have been described in and conveyed by said deed, yet, if, at or about the time said deed was executed and delivered by defendant to said plaintiffs, and in pursuance thereof, defendant put said plaintiffs in peaceable possession of the whole of said lot or tract of land intended to be, and which was actually, purchased by her at the time, and plaintiffs have ever since been, and are now, in the exclusive and undisturbed possession of the whole thereof; and further, that plaintiffs and their grantors have, for ten years or more, prior to the commencement of this suit, been in actual, open, notorious, exclusive and continuous possession of the whole of said lot or tract of land, including the four and one-half feet on the west side thereof, erroneously omitted from said deed, as aforesaid, under claim of title thereto; and further, that defendant, by his answer, has offered, and at the trial offered, to convey to said plaintiff the said four and one-half feet, and tendered in court a deed duly executed, with full covenants of general warranty, conveying to said plaintiff Mary E. Adkins, as of the date when said first deed was made to her by defendant, the said four and one-half feet of...