Bartlett v. Brown
| Decision Date | 24 March 1894 |
| Citation | 25 S.W. 1108,121 Mo. 353 |
| Parties | Bartlett et al., Appellants, v. Brown et al |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.
Affirmed.
B. R Vineyard and Hall & Pike for appellants.
(1) The evidence adduced by plaintiff was competent and sufficient to establish the south boundary on the north line of the private road as the one intended to be described in the deed. Jones v. Poundstone, 102 Mo. 240; Turner v Baker, 64 Mo. 218; Fuch v. Treat, 41 Wis. 404; Broadway v. Buxton, 43 Conn. 282; Andrews v Andrews, 81 Me. 337; Root v. Cincinnati, 54 N.W. 206; Hegueras v. U.S. 5 Wall. 827; Ufford v. Wilkins, 33 Iowa 110; Virginia v. Tennessee, 148 U.S. 522; Baldwin v. Brown, 16 N.Y. 359; Reed v. Farr, 35 N.Y. 113; Dolde v. Vodicka, 49 Mo. 98; Blassingame v. Davis, 68 Tex. 597; Boone Co. v. Anderson Co., 89 Tenn. 259; Culbertson v. Duncan, 13 A. 966; Taylor v. Arnold, 17 S.W. 361; Lecompte v. Lueders, 51 N.W. 542; Doolittle v. Bailey, 52 N.W. 337. (2) Equity will supply in the deed words to make the description conform to the intention of the parties, so that it will read: Beginning at a point in the center of the state road, etc., where the north line of the private road leading to the cemetery intersects the same; thence east twelve chains to a stake; thence north to a stake, etc. Distance and quantity, if the deed so reads, would be rejected at law. Orrick v. Bower, 29 Mo. 210; Campbell v. Johnson, 44 Mo. 247; Kincaid v. Dormey, 47 Mo. 340; Thayer v. Finton, 108 N.Y. 394. (3) That it is competent for a court of equity to grant the relief prayed can not be doubted, and neither lapse of time nor the statute of limitations will bar the application. Hutson v. Fumas, 31 Iowa 154; Pom. Eq. Jur., secs. 174, 180, 859, 1384, 1398, 1399; Virginia v. Tenn., 148 U.S. 504; 2 Lead Cas. in Eq. 476. (4) Joseph and his heirs were estopped to assert title to any of the land in controversy. Dolde v. Vodicka, 49 Mo. 98; 7 Am. and Eng. Encyclopedia of Law, 15 and note 3; Burnes v. Fitch, 76 Cal. 395; Mellor v. Hammond, 17 Mo. 200; Taylor v. Zepp, 14 Mo. 482; Turner v. Baker, 64 Mo. 218; Galbraith v. Lansford, 87 Tenn. 104; Byerdorfer v. Schultz, 2 S.W. 492; Lecomte v. Toudouze, 82 Tex. 208. (5) Long acquiescence or recognition of a given line between coterminous proprietors, whose respective tracts were derived from different sources is, in the absence of evidence of a contrary intention, conclusive of a practical location of the line by them, and where the land of one of such proprietors was conveyed to him out of land owned by the other -- said conveyance first occasioning a division of the land -- such acquiescence or recognition is also conclusive that such line was the one agreed upon when the sale was negotiated. Authorities supra, point 1. (6) The court erred in holding that the declarations and admissions of Joseph were not binding upon him, unless he knew his deed called for a different line. Golterman v. Schiermeyer, 111 Mo. 404; Turner v. Baker, supra. Galbraith v. Lunsford, supra.
Vories & Vories for respondents.
(1) A court of equity interferes to correct a mistake in a written instrument, only for the furtherance of justice; and it is not under any obligation to correct a mistake, although the fact of mistake appears ever so plainly, unless it also appears that its interference is necessary to prevent the perpetration of a fraud or some injustice. Henderson v. Dickey, 35 Mo. 126; 2 Pomeroy's Equity Juris., secs. 856-859; 1 Story's Equity, secs. 176 and 793. (2) Where land is sold by metes and bounds, as containing a given number of acres, should the fact appear that there was a mistake as to the number of acres, equity will give relief. Paine v. Upton, 87 N.Y. 327; Belknap v. Sealey, 14 N.Y. 144. (3) Courts of equity do not grant the high remedy of re-formation upon a probability, nor even upon a mere preponderance of evidence, but only a certainty of error. The evidence must be most clear and convincing. Pennybacher v. Laidly, 33 W.Va. 624; Sweet v. Owens, 109 Mo. 7; Railroad v. Dunlap, 86 Va. 346; Moore v. Giesecke, 76 Texas, 543. (4) The supreme court will not reverse the finding of trial courts in cases of equity, unless it appears that the preponderance of evidence is against such finding. Rawlins v. Rawlins, 102 Mo. 563; Gottschalk v. Kircher, 109 Mo. 170. (5) Equity has jurisdiction to re-form a deed where there is a mutual mistake -- that is, where there has been a meeting of the minds, but the deed does not express what was really intended by the parties thereto. 20 Am. and Eng. Encyclopedia of Law, p. 714 and cases cited. (6) He who seeks equity must do equity. Equity regards that as done which ought to have been done. 6 Am. and Eng. Encyclopedia of Law, pages 705 and 707 and cases cited; Woodard v. Mastin, 106 Mo. 324. (7) A court of equity has no jurisdiction to fix boundaries unless some equity is superinduced by the act of the parties, or unless some particular circumstance of fraud or collusion exists. 6 Am. and Eng. Encyclopedia of Law, p. 722 and cases cited; 2 Am. and Eng. Encyclopedia of Law, 496; Wilson v. Hart, 98 Mo. 618. (8) There can be no estoppel in this case. Acton v. Dooley, 74 Mo. 63; Spurlock v. Sproule, 72 Mo. 505; Bates v. Perry, 51 Mo. 449; Chapman v. Crooks, 41 Mich. 595; Spring v. Houston, 52 Cal. 442; Hartung v. Witte, 59 Wis. 285.
On the eleventh 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 6, in township 56 of range 35, thence south twenty chains, thence east twenty-five chains to the center of the state road, thence north twelve and one-half degrees east, twenty and fifty-hundredths chains along the center of road to Auther's line, thence west to Auther's line twenty-nine and eighty-hundredths chains to the beginning, containing fifty-four and eighty-hundredths acres; also thirteen and fifty-one hundredths acres in the same quarter, beginning at the center of the state road six and fifty-hundredths chains, south twelve and one-half degrees west of the southeast corner of the above named fifty-four and eighty-hundredths acres, thence east twelve chains, thence north eleven and fifty-hundredths chains, thence west eleven and fifty-hundredths chains to center of road; thence south twelve and one-half degrees west, eleven and sixty-one hundredths 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. twelve and one-half degrees west three and thirty-two hundredths chains, thence east twelve chains, thence north six and fifty-hundredths 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 DeKalb 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 twelve and one-half degrees west three and thirty-two hundredths chains; thence east twelve chains, thence north seven and sixteen-hundredths chains, thence west ten and forty-four hundredths chains to the center of the public road aforesaid; thence south twelve and one-half degrees west four chains to the beginning, containing eight and three-hundredths 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 thirteen and fifty-one hundredths 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 bottom land 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 fourteen 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...
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