Atwell v. Jack Henry and Associates, Inc.

• Decision Date: 18 April 1988
• Docket Number: No. 15212,15212
• Citation: 748 S.W.2d 929
• Parties: C.E. ATWELL and Lugene Atwell, Plaintiffs-Respondents, v. JACK HENRY AND ASSOCIATES, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 929

748 S.W.2d 929

C.E. ATWELL and Lugene Atwell, Plaintiffs-Respondents, v. JACK HENRY AND ASSOCIATES, INC., Defendant-Appellant.

No. 15212.

Missouri Court of Appeals,

Southern District,

Division One.

April 18, 1988.

Ralph E. Hunt, Springfield, for plaintiffs-respondents.

Robert D. Kroeker, Linda S. Dickens, Connie J. Boysen, Sildon & Kroeker, P.C., Kansas City, for defendant-appellant.

GREENE, Presiding Judge.

Defendant, Jack Henry and Associates, Inc. (Jack Henry), ¹ appeals from the trial court's judgment which decreed that plaintiffs, C.E. Atwell and Lugene Atwell (Atwells), were the fee simple owners of a strip of land 50 feet wide and 1,870 feet long lying south of the present right-of- way of U.S. Highway 60 in Barry County, Missouri. The trial court also ruled that Jack Henry was not entitled to recover the value of claimed improvements it had put on the disputed strip of land prior to notice of the Atwells' adverse claim to the property. We affirm.

All the land involved in this case lies south of the highway right-of-way. The land of the Atwells lies north of the tract owned by Jack Henry. The disputed strip is 50 feet in width and adjoins the north edge of Jack Henry's land. It is uncontested that common predecessors in title owned all the relevant tracts, unburdened by any public use, before the conveyances which precipitated this dispute were made.

On September 3, 1958, Lisle J. Wormington, Mabel Woolsey and Alvis Woolsey conveyed the disputed strip by quitclaim deed to Barry County. After reciting the legal description, the deed states: "For road purposes only." There is nothing in the record to show that Barry County adopted the deed in question and designated the strip as a public road, or that it expended any labor or money in improving it for road purposes. On the same day, the same three grantors conveyed the entire northern tract by warranty deed to Henry Sorensen, Marie Sorensen, and Ella E. Atwell. After giving a legal description of the tract including the disputed area, the deed excepted "a 50 foot strip off the south side of said tract for road purposes," which is the same strip of land quitclaimed for road purposes only to Barry County on the same day by Wormington and the Woolseys. Through a succession of conveyances, which used the same legal description as the deed just referred to, the Atwells became the owners of the northern tract.

On January 16, 1981, Christa Hallett, who was a successor in title to the earlier owners of the real estate she was conveying, conveyed to Jack Henry, by warranty deed, a 37 acre tract of land. This deed described what was evidently the entire tract owned by the common predecessor, followed by an express exception of everything covered by the Atwell deed. Although this language fully excluded the disputed strip, this deed also recited an exception of the 50 foot strip that had been deeded to Barry County for road purposes. Apparently, this strip had been used as a public road many years earlier, but was abandoned when Highway 60 was rerouted, and was grown up in brush and weeds.

Jack Henry decided to construct an office building on its property, and immediately began clearing and grading the disputed strip so that it could be used as an access road to the building site. It had the disputed strip surveyed and staked out, water and telephone lines installed along the south edge of the strip to service the office building, and began construction of a fence along the north side of the strip. Mr. Atwell wrote Jack Henry a letter on July 31, 1981, advising that the Atwells owned the disputed strip, and instructed Jack Henry to cease the work being done on it. Jack Henry evidently ignored the letter and finished construction of the fence and two stone posts positioned near the entrance to the strip which barred the Atwells from using the disputed tract.

After the improvements were completed, Jack Henry, in November of 1981, evidently requested and received an undated quitclaim deed from Barry County signed by the three county judges, Bob Ray, Emil Schad, and Dave Sparkman. Their authorization to sign the deed on behalf of Barry County is not specified in the deed. The deed was to the 50 foot strip that had previously been quitclaimed to Barry County, and specified that the strip was quitclaimed "For road purposes only." This was followed on November 5, 1981, by still another quitclaim deed, which purported to convey to Jack Henry any interest Barry County had in the 50 foot strip. This deed was executed by Dick Sanders, who styled himself as a "commissioner" of Barry County, and evidently was an attempt to comply with § 49.280 RSMo 1978, which statute permitted the county court (county commission in its present form) to appoint a commissioner (now called ex officio commissioner) to dispose of real estate owned by the county. This deed also contained a limitation that it was for road purposes only.

The Atwells then sued Jack Henry. The first count of their petition was an action to quiet title in which the Atwells requested the court to declare that they were the fee simple owners of the 50 foot strip being used by Jack Henry as a road. Count two was an action in ejectment, requesting that Jack Henry be ordered to (1) remove the fence and two stone posts it had put on the property, (2) restore the strip to its original condition, and (3) pay damages to the Atwells for unlawful use of the property.

In its amended answer and counterclaim, Jack Henry asserted that it was the fee simple owner of the 50 foot strip, by reason of the conveyances from Barry County to it, and, that even if the court found Jack Henry not to be the owner, it had made good faith improvements on the land in the value of $16,500 believing it had good title to the land and, for that reason, should be given compensation for the improvements.

The case was court-tried. At trial, the Atwells abandoned their claim for damages. Evidence was heard, the substance of which is set out above. Neither party requested separate findings of fact and conclusions of law.

In its judgment, the trial court declared the Atwells to be the fee simple owners of the 50 foot disputed strip, and denied Jack Henry's counterclaim for the value of the improvements. After noting an offer by the Atwells to do so, the court ordered them to grant the city of Monett, or other appropriate authority, a permanent easement to maintain the water line to Jack Henry's property, and to allow Jack Henry to use a portion of the strip as a road to reach its property until a road on its own property could be constructed, or for a period of six months, whichever event came first. The trial court also ordered Jack Henry to remove the fence and pillars within 60 days. This appeal followed.

Our duty is to uphold the trial court's judgment if it is supported by substantial evidence, is not against the weight of the evidence, and is not based on any erroneous declaration or application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In its first point relied on in this appeal, Jack Henry contends that the quitclaim deed of September 3, 1958, from Wormington and the Woolseys to Barry County conveyed a fee simple interest in the disputed strip and, therefore, when Barry County quitclaimed the strip to Jack Henry, it, not the Atwells, owned the disputed property. Jack Henry argues that this conclusion is justified for the reason that § 442.440, RSMo mandates that "[a]ll deeds, grants and conveyances made, acknowledged and recorded as other deeds conveying lands, tenements or hereditaments to any county, or the inhabitants of any county, and their successors, or to the governor, or any person, by whatever form of conveyance, for the use and benefit of any county, shall vest in such county, in fee simple, all the right, title, interest and estate which the grantor in such deed had, at the time of the execution thereof, in the lands thereby conveyed." This argument is not persuasive.

Jack Henry contends that because the statute uses the term "in fee simple," and speaks of a conveyance of all of the interest the grantor had in the property, that a party is prohibited from conveying to a county any estate or interest in property that is less than a fee simple absolute interest, regardless of the intended purpose of the conveyance.

If this argument were sound, then the 1958 quitclaim deed from the owners of the strip to Barry County conveyed a fee simple absolute interest in the land which, in turn, passed to Jack Henry in 1981, when Barry County conveyed to Jack Henry whatever interest the county had in the land.

The parties to this appeal have cited only one case where appellate treatment of § 442.440 or its similar predecessors was utilized, and our independent research has not disclosed any other. The case cited was Turner v. Clark County, 67 Mo. 243 (1878). In Turner, the county received a sheriff's bond secured by a mortgage in settlement of a suit the county had brought against the sheriff upon his bond, because of delinquencies in the sheriff's accounts. When payment of the bond was not forthcoming, the county sued on the mortgage, obtained a judgment of foreclosure, bought the land at the foreclosure sale, and obtained a deed to it. The Supreme Court held that, by reason of a statute then in force, Uses and Trusts, 2 Wag.Stat., p. 1352, § 13, which statute used precisely the same language as § 442.440, the county, regardless of the wisdom of accepting the bond and mortgage in settlement of its suit against the sheriff, had the same right to buy a fee simple interest in real estate as an individual. We fail to see how this decision is of any aid and comfort to Jack Henry, as all it does is illustrate the apparent historical purpose of the original statute and its successors.

The progenitor of the present day § 442.440 is shown in the revised statutes of 1825, p. 243. This was an enactment of five...