Ashauer v. Peer

• Citation: 139 S.W.2d 991,346 Mo. 218
• Decision Date: 07 May 1940
• Docket Number: 36332
• Parties: Mathilda S. Ashauer, Appellant, v. Adelia Ashauer Peer, L. C. Branner, Trustee, Joseph W. Hons, M. C. Matthes, Trustee, and Bank of Kimswick, a Corporation
• Court: United States State Supreme Court of Missouri

139 S.W.2d 991

346 Mo. 218

Mathilda S. Ashauer, Appellant, v. Adelia Ashauer Peer, L. C. Branner, Trustee, Joseph W. Hons, M. C. Matthes, Trustee, and Bank of Kimswick, a Corporation

No. 36332

Supreme Court of Missouri

May 7, 1940

Appeal from Jefferson Circuit Court; Hon. Robert I. Cope Judge.

Transferred to the St. Louis Court of Appeals.

R E. Kleinschmidt for appellant.

(1) The Supreme Court will try equity case de novo and reach its own conclusions on appeal. Aden v. Dalton, 107 S.W.2d 1070; Liflander v. Bobbitt, 111 S.W.2d 75; Peikert v. Repple, 114 S.W.2d 1002. (a) The rule that due deference will be given to the findings of the trial chancellor applies mainly where the evidence was chiefly oral and not, as here, where the issue is the construction of descriptions in deeds, and the material evidence consists largely of deeds, plats and written instruments. Shaw v Butler, 78 S.W.2d 421; Smith v. Lore, 29 S.W.2d 96. (b) The Supreme Court, in an equity case, has a distinct advantage over the trial court in that it can view all the evidence in perspective from the printed record, especially in a case like this, where practically all of the material evidence consists of written instruments. Smith v. Lore, 29 S.W.2d 96. (2) The fundamental rule in the construction of deeds is to ascertain the intention of the grantor, and the entire deed should be considered in determining such intention. Triplett v. Triplett, 60 S.W.2d 15; Keller v. Keller, 123 S.W.2d 115; Monroe v. Lyons, 98 S.W.2d 544; Hubbard v. Whitehead, 221 Mo. 682. (a) Where a deed contains two inconsistent descriptions, that description which the whole instrument shows best expresses the intention of the parties must control. Whitaker v. Whitaker, 175 Mo. 11. (b) Where the deed, applied to the subject matter, shows a manifest omission (or misdescription) of a monument and there is sufficient data furnished by the deed to supply the omission (or correct the misdescription), the error will be corrected by construction. Deal v. Cooper, 94 Mo. 65; Central Mo. Oil Co. v. St. James, 111 S.W.2d 219. (c) Where more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake could be committed, and that be rejected in regard to which mistakes are most apt to be made. Bradshaw v. Bradbury, 64 Mo. 336; 3 Washburn on Real Property (4 Ed.), p. 405; 18 C. J., p. 288, sec. 258. (d) The parties will be presumed to have been influenced by facts of which they had knowledge rather than by things of which they were ignorant. 18 C. J., p. 280, sec. 248. (e) The rule is clearly established that whenever an inconsistent call is given in a survey or deed it may be rejected for inconsistency or repugnancy, where description enough still remains to ascertain and describe the land with certainty. Cooley v. Warren, 53 Mo. 166; Prior v. Scott, 87 Mo. 303; Shewalter v. Pirner, 55 Mo. 232; Federal Land Bank v. McColgan, 59 S.W.2d 1055; 18 C. J., p. 285, sec. 255.

John E. Corvey for respondents.

(1) In equity cases the appellate court is limited to the record proper or will affirm the judgment, unless all the evidence is embodied in the bill of exceptions. Appellant admits that all the evidence has not been brought up Rule 7, Mo. Sup. Ct.; Huggins v. Hill, 236 S.W. 1051; Ford v. Laughlin, 285 Mo. 533, 226 S.W. 911; State ex rel. Guinan v. Parrott, 183 Mo. 217, 81 S.W. 876. (2) If the identity of the property can be determined from description thereof, including several particulars, the estate will pass even though it does not agree in all particulars. Central Mo. Oil Co. v. St. James, 111 S.W.2d 215; McCune v. Hull, 24 Mo. 570; Hubbard v. Whitehead, 221 Mo. 672, 121 S.W. 69; 18 C. J. 283. (3) Where the words used in the description in a deed are uncertain or ambiguous and the parties have by their acts given a practical construction thereto, the construction so put upon the deed by them may be resorted to aid in ascertaining their intention. Blumenthal v. Blumenthal, 251 Mo. 693, 158 S.W. 648; Hubbard v. Whitehead, 221 Mo. 672, 121 S.W. 69; Moran Co. v. Car Co., 210 Mo. 736; 18 C. J. 279. (4) An impossible description may be rejected to carry out the intention of the parties and give effect to the instrument. Porter v. Robinson, 29 S.W.2d 133; Cooley v. Warren, 53 Mo. 166; Jennings v. Brizeadine, 44 Mo. 332; Hartt v. Rector, 13 Mo. 497, 53 Amer. D. 157; 18 C. J. 285, 286. (5) One who knows the true boundary line between himself and an adjoiner, who allows the latter, without protest, to make improvements up to what he supposes to be the true line, will be estopped to dispute such line. Evans v. Snyder, 64 Mo. 516; Collins v. Rogers, 63 Mo. 515; Majors v. Rice, 57 Mo. 384; Rutherford v. Tracy, 48 Mo. 325, 8 Am. Rep. 104; Acton v. Dooley, 6 Mo.App. 323; Craddock v. Short, 134 Mo. 499, 35 S.W. 1141. (6) Courts of equity will not aid to litigant who has negligently slept on his rights and suffered demand to become stale, where injustice would be done by granting relief asked. Snow v. Funck, 41 S.W.2d 5; Equity, Mo. Dig. Key No. 67. (7) One who seeks equity must do equity. Plaintiff makes no offer in her petition or elsewhere to pay for defendant's improvements and buildings. McNatt v. Maxwell Inv. Co., 330 Mo. 675, 50 S.W.2d 1080.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an action to determine the dividing line between two tracts of land in Jefferson County. Plaintiff owns one of the tracts and defendant, Adelia Ashauer Peer the other. Other defendants are trustees and beneficiares in two deeds of trust. The learned trial court did not fix the dividing line as claimed by plaintiff and she appealed.

It is suggested in respondents' brief that we do not have jurisdiction of this appeal, but whether raised or not, it is our duty to determine such question. [Perkins v. Burks et al. (Mo.), 61 S.W.2d 756; Rust Sash & Door Co. v. Gate City Bldg. Corp. et al., 342 Mo. 206, 114 S.W.2d 1023.]

January 29, 1932, Charles Ashauer, father of plaintiff and Adelia, conveyed to his daughters, by separate deeds, the two tracts here concerned. It was stated, following the description in plaintiff's deed, that her tract contained "8 acres, more or less", and in Adelia's deed, it was stated (same place) that her tract contained "15 acres, more or less." Plaintiff alleged and the court found that the two tracts contained only 21.667 acres. Also, plaintiff alleged and the court found that she should have 7.536 acres and Adelia 14.131 acres, and of this Adelia does not complain. Since there is no disagreement about the acreage each should have, it would seem that there should be no dispute as to the dividing line between the tracts. Such ordinarily would be true, but, under the description in the deeds, plaintiff contends that the dividing line should extend northwest and southeast, while Adelia contends, under the same descriptions, that the dividing line should extend northeast and southwest, and the court found that the dividing line extended as contended by Adelia. Hence the actual question is: Does the dividing line run as the court found or as plaintiff contends?

We do not have jurisdiction of this appeal unless title to real estate is involved. [Constitution, Sec. 12, Art. 6, and Sec. 5, Amendment 1884.] The only question in this case is the construction of the descriptions in the two deeds. The court found that the descriptions in the deeds were "vague, indefinite and ambiguous," and the judgment sets out a description for each deed, which, according to the finding, was intended by the grantor, and then it is adjudged that both deeds be reformed accordingly.

Phillips v. Cope et al. (Mo. App.), 104 S.W.2d 276, was transferred by the Springfield Court of Appeals to the Supreme Court on the theory that title was involved, and the cause was disposed of here (111 S.W.2d 81) without specifically ruling the question of jurisdiction. That case was a controversy between a brother and his two sisters. Their father owned the SW 1/4 of the SW 1/4 of Sec. 3, and 20 acres immediately south, the W 1/2 of the NW 1/4 of the NW 1/4, Sec. 10. There was an east and west road on the section line (for the most part) between these tracts, which road had been established for many years. The road cut a triangular strip, about an acre or less, off the southwest corner of the forty acre tract in section 3, and this strip was joined up with the 20 acre tract in section 10. The home house of the father was on the section line immediately south of this strip and a number of the outbuildings were on the strip, and such had been the situation for many years. In 1916, the father conveyed to his daughters the 40 acre tract in section 3, describing it as the SW 1/4 of the SW 1/4, which, of course, included the strip. The father died in 1921, and the brother became the owner of the 20 acre tract upon which the house and outbuildings were supposed to be located. When it was ascertained that the triangular strip was actually a part of the 40 acre tract, the brother brought suit to reform (on the ground of mutual mistake) the deed that the father had made to his daughters, and the deed was reformed so as to eliminate the triangular strip.

In the Phillips case the deed, on its face, clearly conveyed to the daughters the triangular strip, and to reform it so as to eliminate this strip took title out of them and vested it in their brother, and therefore, title was involved. [Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W.2d 771.]

The situation here, however, is not the same as in the Phillips case. In the present case, certain described land is conveyed by each deed, and the only thing sought was to clear up an...