Baugh v. Grigsby

• Decision Date: 13 February 1956
• Docket Number: No. 1,No. 44776,44776,1
• Parties: Edward S. BAUGH and Dorothy M. Baugh, his Wife, Appellants, v. Frank P. GRIGSBY and Lucy May Grigsby, his Wife, Respondents
• Court: Missouri Supreme Court

Page 798

286 S.W.2d 798

58 A.L.R.2d 607

Edward S. BAUGH and Dorothy M. Baugh, his Wife, Appellants, v. Frank P. GRIGSBY and Lucy May Grigsby, his Wife, Respondents.

No. 44776.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1956.

Omer H. Avery, Troy, for appellants.

Fred D. Wilkins, Louisiana, Derwood E. Williams, Troy, for respondents.

COIL, Commissioner.

Appellants, referred to herein as plaintiffs, brought an action to quiet title to real estate in Lincoln County (the Cornick rural school site) consisting of approximately one acre with a school building thereon. Plaintiffs alleged that respondents, called defendants herein, claimed an interest in the land by virtue of their purchase of it at a public sale from Reorganized School District R-IV of Lincoln County. The trial court adjudged fee-simple title in defendants, and plaintiffs have appealed.

Plaintiffs claimed that they held the record title. That claim was based upon a deed from one Trescott to his daughter and by a subsequent conveyance by Trescott's daughter to Mr. and Mrs. Smith, who, in turn, conveyed by warranty deed dated November 20, 1947, to plaintiffs. That last-mentioned deed, as did the other deeds beginning with the one from Trescott to Miller, conveyed inter alia '6 2/3 acres off of the South side of the Northeast quarter of the Northwest quarter of Section 10.' It was established that the land in controversy (except for a small part thereof not of significance in our disposition of this case) was included within the easternmost acre of the 6 2/3 acres above mentioned. So that if Trescott had title to the 6 2/3 acres he purported to convey to Kate M. Miller, his daughter, by his deed dated May 30, 1901, then plaintiffs sustained their burden to prove that they held the record title under which they claimed. On the contrary, if Trescott did not have title to the easternmost acre of the 6 2/3 acres he conveyed to his daughter, then, of course, plaintiffs failed in their proof as to the record title and they made no other claim of title.

It is well established that plaintiffs must succeed upon the strength of their own title and, consequently, if plaintiffs failed to prove prima facie that they held the record title, they have no interest in the land. Cullen v. Johnson, 325 Mo. 253, 271, 29 S.W.2d 39, 46.

We, therefore, examine the evidence to determine whether Trescott did have title to the easternmost acre of the 6 2/3 acres off the south side of the NE 1/4 of the NW 1/4 of Sec. 10 at the time he purported to convey title to that acre. An August 10, 1849, patent from the United States to one Parker granted to him the north half of the NW 1/4 of Sec. 10. (It should be noted that that patent included also the east half of the NE 1/4 of Sec. 9, which, together with the north half of the NW 1/4 of Sec. 10, was described as containing 160 acres, thus indicating, in the absence of evidence to the contrary, that each quarter quarter there mentioned was of the standard size of 40 acres.) By a September 24, 1858, Lincoln County Circuit Court judgment, Presley A. Tipton and his wife acquired title to the north half of the NW 1/4 of Sec. 10. (Again the east half of the NE 1/4 of Sec. 9 was described jointly with the north half of the NW 1/4 of Sec. 10, and these two parcels were again described as containing 160 acres.) On November 19, 1866, Presley A. Tipton and his wife conveyed to Enos Trescott certain lands including that described as follows: 'and Thirty Nine Acres, being part North East Fourth of North West Quarter Section Ten, * * *.' (Our italics.) The last-mentioned deed is the only one by which plaintiffs claimed that Enos Trescott obtained title to the acre of ground now in question.

It is apparent that the last-mentioned deed did not convey title to all of the NE 1/4 of the NW 1/4 of Sec. 10, but only to a part thereof, viz., 39 of the 40 acres contained in that quarter section. It is true that grantor Tipton did not describe either the 39 acres conveyed or designate the acre excepted. Other evidence in the record, however, throws light upon the question of whether the one acre not conveyed was in fact the acre which included the school site now in controversy.

Andrew J. Brown, a witness for both plaintiffs and defendants, a surveyor who had practiced his profession in Lincoln County for over forty years, had surveyed and platted the Cornick School site as it appeared in 1952. Among other things, he testified that the 6 2/3 acres off the south side of the NE 1/4 of the NW 1/4 of Sec. 10, as described in Trescott's deed to Miller, would be and was a strip of land 217 feet from south to north. That is to say that the north line of the 6 2/3 acres ran from a point 217 feet north of the southeast corner of the NE 1/4 of the NW 1/4 west to a point 217 feet north of the southwest corner of the NE 1/4 of the NW 1/4. As noted, however, the plat purported to be one of the school site as it appeared in 1952, based upon existing landmarks and certain deductions the witness made therefrom. By reason of the fact that in 1952, and for 20 to 30 years prior thereto, there was a public road which ran in a northwest-southeast direction which appeared to bound the school site, it was assumed that such public road constituted the north boundary of the land in question. As a result, the east line of the school site as platted in 1952 was only 152 feet. As noted, the witness testified that the eastern acre of the 6 2/3 acres contained the school site and that that acre extended northwardly from the southeast corner of the NE 1/4 of the NW 1/4 of Sec. 10 a distance of 217 feet. So that, in fact, the easternmost acre of the 6 2/3 acres extended northwardly across the public road for a distance on its east line of 65 feet. The north boundary of that acre extended westwardly to the west line of the acre a place also 217 feet north of the south quartersection line. The significance of the foregoing will hereinafter appear.

The evidence further showed that at some time 20 or 30 years prior to trial in 1954, the location of the public road as it existed at the time of trial and in 1952 at the time the plat was made had been moved some 30 feet northwardly from its prior location.

The evidence further showed that a Cornick School, a log building, was in existence and being operated by Cornick School District No. 49 or its predecessor for at least a number of years prior to 1865; that that log building was located north of whatever road was then in existence; and that the school site at that time included the land (now in controversy) south of the present public road. In 1888 or 1889 a new building (the one now in existence) was constructed in its present location which was 'south of the road.'

In view of that testimony by two witnesses who had attended the Cornick School when it was a log building 'north of the road' and had also attended the school which was later constructed 'south of the road,' and in view of the fact that, based upon the surveyor's testimony, the easternmost acre of the 6 2/3 acres extended 217 feet northwardly from the post at the southeast corner of the NE 1/4 of the NW 1/4 of Sec. 10 and that the road now in existence had been moved 30 feet northwardly from its location 20 or 30 years prior to 1954, thus making it physically feasible for the log school to have been located on a part of the easternmost acre of the 6 2/3 acres, it would appear that the most reasonable inference is that the original Cornick School, the log building, was in fact located on part of the easternmost acre of 6 2/3 acres off the south side of the NE 1/4 of the NW 1/4 of Sec. 10, the same acre which contains the site now in question. If that is true, and based upon all the evidence we...