Becker v. Workman, 36352

• Decision Date: 21 October 1975
• Docket Number: No. 36352,36352
• Citation: 530 S.W.2d 3
• Parties: Roy J. BECKER and Margaret M. Becker, his wife, Respondents, v. Harold R. WORKMAN and Elizabeth J. Workman, his wife, Appellants. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 3

530 S.W.2d 3

Roy J. BECKER and Margaret M. Becker, his wife, Respondents, v. Harold R. WORKMAN and Elizabeth J. Workman, his wife, Appellants.

No. 36352.

Missouri Court of Appeals, St. Louis District, Division Four.

Oct 21, 1975.

Gordon F. Webb, Clayton, for appellants.

Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Samuel Richeson, Nicholas G. Gasaway, Hillsboro, for respondents.

NORWIN D. HOUSER, Special Judge.

Roy J. and Margaret M. Becker filed suit against Harold R. and Elizabeth J. Workman to quiet title to certain land situate in Jefferson County. Defendants filed an answer and counterclaim praying that title be quieted in them. Plaintiffs filed a reply setting up title by adverse possession (a theory not pursued at trial). The parties own adjoining tracts of land, plaintiffs' property lying west of defendants' tract. This is a dispute as to the location of the dividing line. It involves title to a 2.45 acre tract. The trial court, sitting without a jury, found the issues for plaintiffs and against defendants, both on petition and counterclaim, and quieted title to the 2.45 acre tract in plaintiffs. Defendants have appealed.

The common source of title is Robert H. Cobb.

In 1967 Cobb deeded to plaintiffs Becker the north half of a quarter section, less and excepting two tracts, one of which was described as a 23 acre tract, more or less, conveyed by Cobb to Oliver in 1961. The controversy grows out of the description of the western boundary line of that tract in the Cobb-Oliver deed, as follows: '* * * bounded on the West side by a new three strand heavy barbed wire fence, with cedar posts which is the dividing line between property under consideration for sale and property belonging to Robert H. Cobb. Tract contains 23 acres, more or less.' In 1971 Oliver and wife conveyed this land to defendants Workman by deed describing the western boundary in the same language quoted above, again using the quantity description, 'Tract contains 23 acres, more or less.'

In 1957 or 1958 Cobb, at that time owner of the entire north half of the quarter section, caused his hired hands to build a three strand heavy barbed wire fence from point A on the following diagram, located on the north line of his property, through points B and D to point E, which was located on the south line of his property. At approximately the same time Cobb had his employees build a three strand heavy barbed wire fence along line B C D, completely enclosing the shaded area, which represents the 2.45 acre tract in controversy.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The descriptive language presents no ambiguity on the face of the deed but when one attempts to apply or fit the language to the subject matter on the ground for the purpose of identifying the western boundary an ambiguity or duplexity in meaning at once raises a doubt whether the western boundary described in the Cobb-Oliver and Oliver-Workman deeds is meant to be the line of barbed wire fence running from letter A through B, D and E, or is the line A B C D E. If the former, the 2.45 acre tract belongs to respondents Becker. If the latter, the 2.45 acre tract belongs to appellants Workman. 'A latent ambiguity in the description of land in a deed or mortgage is an uncertainty not appearing on the face of the instrument, but which is shown to exist for the first time by matter outside the writing, when an attempt is made to apply the language to the ground. Such an ambiguity, it is practically agreed by all the cases, may be explained and removed by parol evidence; having been revealed by matter outside the instrument, it may be removed in the same manner.' 68 A.L.R. Anno. p. 5, quoted with approval in Meinhardt v. White,341 Mo. 446, 107 S.W.2d 1061, 1064(4) (1937). And see Walters v. Tucker,281 S.W.2d 843, 847(1) (Mo.1955). The question, then, is one of the intention of the parties to the 1961 Cobb-Oliver deed. (The intention of the parties to the Oliver-Workman deed in 1971 with respect to the courses and directions of the western boundary is immaterial, for obviously, regardless of intention, the Olivers could not convey to the Workmans more land than they acquired from Cobb.)

Considering the parol and extrinsic evidence tending to resolve the latent ambiguity and leading to discovery of the true intention of the parties to the Cobb-Oliver deed we conclude that they meant the western boundary to be the line A B D E and did not intend to include the 2.45 acre tract in the conveyance. We have the benefit of two surveys, made after the filing of this action. The Hurtgen Survey, on which we rely, shows that the tract originally conveyed to Oliver and later by the Olivers to the Workmans, excluding the 2.45 acre tract, contains 19.68 acres. We do not have the benefit of the testimony of Mr. Cobb, grantor in the 1961 deed, but the grantee, Mr. Oliver, testified and we attribute great weight to his testimony as bearing on the intention of the parties. At no time did Oliver ever claim that he owned the 2.45 acre tract. He did not consider that he had purchased that tract. He conceded that Cobb owned the 2.45 acre tract during the eight or ten years Oliver lived on the 19.68 acres. Referring to the lumber gate (located at the black mark just above letter D on diagram) Oliver...