Arnett v. Venters

• Citation: 673 S.W.2d 67
• Decision Date: 22 May 1984
• Docket Number: No. WD,WD
• Parties: Robert G. ARNETT and Margie J. Arnett, Appellants, v. Jerry VENTERS, Administrator of the Estate of Addie Lee Henry, Deceased, Leland C. Henry, Twyla Henry, LeRoy Henry, Luella Henry, Velma Rose Bloch, Max Bloch, Claudine Bailey, George F. Bailey, Paul H. Cox, Sherry L. Cox, August W. Morlock, Margaret J. Morlock, Darrell W. Schultz and Billie C. Schultz, Respondents. 34161.
• Court: Court of Appeal of Missouri (US)

Page 67

673 S.W.2d 67

Robert G. ARNETT and Margie J. Arnett, Appellants, v. Jerry VENTERS, Administrator of the Estate of Addie Lee

Henry, Deceased, Leland C. Henry, Twyla Henry, LeRoy Henry,

Luella Henry, Velma Rose Bloch, Max Bloch, Claudine Bailey,

George F. Bailey, Paul H. Cox, Sherry L. Cox, August W.

Morlock, Margaret J. Morlock, Darrell W. Schultz and Billie

C. Schultz, Respondents.

No. WD 34161.

Missouri Court of Appeals,

Western District.

May 22, 1984.

Tweedie Fisher, Jefferson City, for appellants.

John W. Inglish, California, for respondents Henry, Bloch and Bailey.

James F. Crews, Tipton, for respondents Cox and Schultz.

Before SOMERVILLE, P.J., and NUGENT and LOWENSTEIN, JJ.

PER CURIAM.

On November 30, 1976, plaintiffs, Robert G. Arnett and Margie J. Arnett, husband and wife (hereinafter plaintiffs Arnett), filed a petition in two counts wherein they sought damages for breach of an alleged covenant as to the quantity of land conveyed to them by warranty deed (Count I) and to quiet title to certain land in Moniteau County claimed by them under said warranty deed (Count II). Following trial and rendition of judgment, plaintiffs Arnett appealed.

The following prologue drawn from the record, prolix though it may be, is deemed essential in order to give some semblance of clarity to certain unusual facets of the case presented on appeal.

By warranty deed dated December 1, 1971, Addie Lee Henry (now deceased), Leland C. Henry, Twyla Henry, LeRoy Henry, Luella Henry, Velma Rose Bloch, Max Bloch, Claudine Bailey and George F. Bailey (hereinafter collectively referred to as defendants Henry), as grantors, conveyed certain real property in Sections Four (4) and Nine (9) of Township Forty-Four (44), Range Sixteen (16), Moniteau County, to the Arnetts. By way of a general description, the real property in question, farm land, lay east and west of Route E in Moniteau County. That portion which generated this litigation lay east of Route E and all references hereafter, unless otherwise indicated, are to that portion. Paul H. Cox and Sherry L. Cox, husband and wife (hereinafter defendants Cox), were owners of a tract of real property which abutted on the north the real property conveyed by defendants Henry to defendants Arnett. Darrell W. Schultz and Billie C. Schultz, husband and wife, and their predecessors in title, August W. Morlock and Margaret J. Morlock, husband and wife (hereinafter collectively referred to as defendants Schultz), were owners of a tract of real property which abutted on the east and south the real property conveyed by defendants Henry to plaintiffs Arnett.

The Henrys, Coxes, Morlocks and Schultzes were all named as defendants in the petition filed by plaintiffs Henry. Plaintiffs Arnett alleged in their petition, inter alia, that defendants Cox claimed possession of and title to approximately 11.67 acres referred to as a "slough" in the north part of the land conveyed to them by defendants Henry, and that defendants Schultz claimed possession of and title to approximately 2.89 acres in the southeast corner of the land conveyed to them by defendants Henry. The 11.67 acre and 2.89 acre tracts immediately heretofore referred to were the subject of the quiet title action asserted by plaintiffs Arnett in Count II of their petition.

The real property conveyed to plaintiffs Arnett by defendants Henry was described in the warranty deed by reference to quarter sections and quarter-quarter sections (with certain tracts excepted, none of which are involved in this litigation). More particularly, insofar as relevant to the cause at hand, part of the description referred to "thirty acres more or less being all that part of the Northeast quarter of the Southwest quarter [Section 4] lying south of the Moreau Creek", and the overall description concluded with "containing in all 129 acres more or less". The source of the legal description set forth in the warranty deed traced back to the early 1900's when the course of Moreau Creek ran considerably south of its present course. During the 1930's the channel of Moreau Creek gradually shifted to the north and at the time of the conveyance in question formed a natural boundary for the north line of the 11.67 acre tract in dispute. The south boundary of the land conveyed by defendants Henry to plaintiffs Arnett, according to the legal description set forth in the warranty deed, ran along a true east-west line. A fence of long standing starting on the east side of Route E, thence running at a slight angle to the north, from west to east, did not accurately follow the east-west line per the legal description in the warranty deed. This accounted for the 2.89 acre tract in dispute in the southeast corner of the tract of real property described in the warranty deed from defendants Henry to plaintiffs Arnett, as well as a triangular 0.34 acre tract lying south of the east-west line per the legal description in the warranty deed and immediately adjacent to the east side of Route E. The triangular 0.34 acre tract was neither mentioned in the petition of plaintiffs Arnett, nor included within the legal description set forth in the warranty deed, nor covered by the judgment rendered by the trial court.

Defendants Henry filed an answer and counterclaim. In their answer to both counts, inter alia, they affirmatively alleged that prior to delivery of their warranty deed to plaintiffs Arnett the boundaries of the real property being sold and purchased were physically pointed out to the plaintiffs Arnett and, as pointed out, did not include the 11.67 acre tract claimed by defendants Cox or the 2.89 acre tract claimed by defendants Schultz. Moreover, they did not claim to own either of said tracts and they intended by their warranty deed to convey to plaintiffs Arnett only that land within the boundaries physically pointed out to the plaintiffs Arnett without regard to the number of acres contained therein, all of which was known to and understood by plaintiffs Arnett. Defendants Henry, regarding Count I, prayed to be "discharged with their costs", and regarding Count II, prayed the court to determine the "boundaries to the land in question and to declare the respective rights of the parties in and to the land described in Plaintiffs' Petition." By way of a counterclaim, defendants Henry, as apparently perceived by the trial court, sought reformation of the warranty deed in question, i.e. the legal description therein, on grounds of mutual mistake, or, in the alternative, for rescission.

Defendants Cox and defendants Schultz filed a joint answer and counterclaim. By way of counterclaim, defendants Cox alleged that they and their predecessors in title had been in actual, open, notorious, hostile, exclusive, and continuous possession of the controversial 11.67 acre tract "for a period of time sufficient to create title in them by adverse possession" and prayed for judgment accordingly. By way of counterclaim, defendants Schultz alleged that they and their predecessors in title had been in actual, open, notorious, hostile, exclusive, and continuous possession of the controversial 2.89 acre tract "for a period of time sufficient to create title in them by adverse possession" and prayed for judgment accordingly. Plaintiffs Arnett filed a reply denying the allegations contained in the joint counterclaim of defendants Cox and defendants Schultz.

In a pretrial order dated November 20, 1981, the trial court, on its own motion, severed Counts I and II of the petition of plaintiffs Arnett for purposes of trial, and "ordered" that Count II of the petition of plaintiffs Arnett be set for trial on January 13, 1982, "together " with any "equitable" claims asserted by defendants Henry in their counterclaim and the "counterclaims" of defendants Cox and defendants Schultz.

Following trial in accordance with the pretrial order dated November 20, 1981, the trial court, upon request, gave leave to the respective parties to submit "proposed" findings of fact and conclusions of law. On August 20, 1982, the trial court entered its "Findings of Fact and Conclusions of Law" and rendered judgment. Said judgment, referring to Count II of the petition of plaintiffs Arnett, ordered, adjudged and decreed that title to the real property in Moniteau County described in the warranty deed wherein defendants Henry were grantors and plaintiffs Arnett were grantees, except as to the 11.67 acre tract and the 2.89 acre tract, be vested in fee simple absolute in plaintiffs Arnett. Said judgment, referring to the counterclaim of defendants Cox, found in favor of said defendants, and ordered, adjudged and decreed that title to the 11.67 acre tract (described by an appropriate legal description) be vested in fee simple absolute in defendants Cox. Said judgment, referring to the counterclaim of defendants Schultz, found in favor of said defendants, and ordered, adjudged and decreed that title to the 2.89 acre tract (described by an appropriate legal description) be vested in fee simple absolute in defendants Schultz. Said judgment, regarding the counterclaim of defendants Henry, ordered, adjudged and decreed that plaintiffs Arnett "abandon any and all claims against any of the defendants [including defendants Henry] herein arising out of and being incidental to" the real estate ordered, adjudged and decreed in the judgment to be vested in defendants Cox and defendants Schultz. Finally, it should be noted, the judgment entered by the trial court was designated therein as "final for purposes of appeal in accordance with Rule 81.06."

Attention now focuses on certain key findings of fact and conclusions of law entered by the trial court material to the issues culminating in the judgment ultimately rendered. Suffice it to say, whether viewed singularly or collectively, competent and substantial evidence for their support permeates the entire record.

The agreed consideration for the warranty deed,...