Bartlett v. Brown

• Decision Date: 24 March 1894
• Parties: BARTLETT et al. v. BROWN et al.
• Court: Missouri Supreme Court

25 S.W. 1108

121 Mo. 353

BARTLETT et al. v. BROWN et al.

Supreme Court of Missouri, Division No. 2.

March 24, 1894.

ACTION TO QUIET TITLE — DISPUTED BOUNDARIES — EVIDENCE — DEEDS — CORRECTION OF MISTAKE AFTER GRANTEE'S DEATH.

1. J.'s father executed to him a deed of 13½ acres of land, described by metes and bounds, within which description there was the exact amount called for by the deed, and thereafter conveyed to D., through whom plaintiffs claim, an adjoining tract, described by metes and bounds, and including 5½ acres of that conveyed to J. No particular line was ever recognized by J. and his father as the true line. There was conflicting evidence as to where it was located. Held, that as there was no evidence that the scrivener made any mistake in writing the deed to J., the boundaries called for in the deed must prevail.

2. A deed by a grantor to his grantee after the latter's decease, in correction of the original deed, is of no effect, where not made with the consent of the grantee's heirs, even though there had been a mutual mistake in the description of the land.

Appeal from circuit court, Buchanan county: Henry M. Ramey, Judge.

Action by W. H. Bartlett and others against Francis T. Brown and others to reform a deed, and to quiet plaintiffs' title to land. From a judgment for plaintiffs, defendants appeal. Affirmed.

B. R. Vineyard and Hall & Pike, for appellants. Vories & Vories, for respondents.

BURGESS, J.

On the 11th day of April, 1874, Thomas A. Brown was the owner in fee of the land in controversy, at which time he conveyed to his son Joseph A. Brown the tract of land described in his deed of that date, which is as follows: "Beginning at the northwest corner of the northeast quarter of section six in township fifty-six of range thirty-five; thence south twenty chains; thence east twenty-five chains, to the center of the state road; thence north, 12½° east, twenty and 50/100 chains, along the center of road to Auther's line; thence west, to Auther's line, twenty-nine and 80/100 chains, to the beginning, — containing fifty-four and 80/100 acres. Also, thirteen and 51/100 acres in the same quarter, beginning at the center of the state road, six and 50/100 chains south 12½° west, of the southeast corner of the above-named 54 80/100 acres; thence east twelve chains; thence north 11 50/100 chains; thence west 11 50/100 chains, to center of road; thence south, 12½° west, 11 61/100 chains, to the place of beginning." Joseph A. Brown died May 22, 1882, leaving the defendant Eliza, his widow, and Francis T. and Margaret Brown, his children, the only heirs at law. The widow subsequently, and before the commencement of this suit, married her codefendant Richard Highsmith. On March 17, 1883, Thomas A. Brown conveyed to William L. Dittimore, by warranty deed, a tract of land described as follows: "Beginning at a point twenty chains south of the northwest corner of the northeast quarter of section 6 in township 56 of range 35; thence east twenty-five chains, to the center of the public road leading from Weston to St. Joseph, S. 12½° west, 3 32/100 chains; thence east, 12 chains; thence north 6 50/100 chains; thence east to the east line of the west half of the northwest quarter of section 5," etc. This deed embraces a part of the same land conveyed by Thomas A. Brown to his son Joseph A. Brown. The plaintiffs in this action claim by mesne conveyances from Dittimore. On June 11, 1883, Thomas A. Brown executed another deed to Joseph A. Brown, who was then deceased, in which the land plaintiffs contend was intended to be conveyed by the original deed is described as follows: "Beginning at the center of the public road leading from St. Joseph to De Kalb, at a point twenty chains south and twenty-five chains east of the northwest corner of the northeast quarter of section 6 in township 56 of range 35; thence south, 12½° west, 3 32/100 chains; thence east twelve chains; thence north 7 16/100 chains; thence west 10 44/100 chains, to the center of the public road aforesaid; thence south, 12½° west, 4 chains, to the beginning, — containing 8 3/100 acres." This deed also contained the following statement: "This deed is made to correct an erroneous description of a tract of land described as containing 13 51/100 acres in a deed dated April 11, 1874, and recorded in 175, page 215." The land conveyed by Thomas A. Brown to Joseph A. was in two tracts. The large tract was bottomland, and used for cultivation. The smaller tract was for building site. It also had a spring upon it. The small tract was north of a private road leading east to a cemetery from a public road, which ran nearly north and south. This private road had been used for many years, and on the south of it was a fence inclosing plaintiff's land on the north. Before the original conveyance from T. A. to Joseph A. Brown, a survey of the land was made in their presence, to obtain a description of it, so as to accurately describe it in the deed thereafter to be made. Plaintiffs claim, and the proof tends to show, that Joseph recognized a line 14 feet north of the fence running east and west to be the line intended as the south boundary of said tract; that he had repeatedly stated that said line was his southern boundary line, dividing his land from that of his father (Thomas); that the mistake in writing the description in the deed so as to locate said line south of said private way was the mutual mistake of both Thomas and Joseph; and that it was not discovered during the lifetime of Joseph. The prayer of the petition is that the court declare that the true line agreed upon, and intended to be described in said deed from Thomas to Joseph, was the north line of said private road; that the description in said deed be reformed, and declared to express the true intent and meaning of the parties thereto; that plaintiffs' title be quieted, and defendants perpetually enjoined from setting up any claim to plaintiffs' land, and for all proper relief. The answer was a general denial. The trial court made a finding of facts, dismissed the petition, and plaintiffs appeal.

The evidence shows that Thomas A. Brown and his son Joseph lived for many years in the same locality, and very near each other. It also shows that plaintiffs, and those under whom they claim title, had been in actual possession and occupancy of the land claimed by them from the time of the execution of the deed to Joseph A. Brown by his father, Thomas A. Brown, and by the latter to Dittimore, down to the commencement of this action. The deed from Thomas A. to Joseph, after describing the larger tract, proceeds as follows: "Also, thirteen and 51/100...