Blumenthal Real Estate And Investment Co. v. Broch
| Decision Date | 19 February 1895 |
| Citation | 29 S.W. 836,126 Mo. 676 |
| Parties | Blumenthal Real Estate and Investment Company v. Broch et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
""C. P. & J. D. Johnson for appellants.
(1) The description relied on in the plaintiff's deed, the sole foundation of its title, if any it has, is fatally defective. ""Johnson Co. v. Wood, 84 Mo. 510; ""Ells v. Railroad, 40 Mo.App. 172; Tiedeman on Real Property, secs 827, 828, 829, and cases cited; ""State ex rel. v Railroad, 114 Mo. 1. (2) The possession of defendant of the premises in dispute, for a period far exceeding the limitations imposed by the statute, has, in the absence of any conveyance extinguishing it, ripened into a title in fee.
""Rassieur & Schnurmacher for respondent.
(1) In ejectment, when plaintiff and defendant claim through a common source of title, it is sufficient for the plaintiff to deduce his title from the common source; to that extent the rule that he must recover on the strength of his own title is departed from. ""Huff v. Morton, 94 Mo. 405; ""Smith v. Lindsey, 89 Mo. 76; ""Miller v. Hardin, 64 Mo. 545; ""Brown v. Brown, 45 Mo. 412; ""Holland v. Adair, 55 Mo. 40. (2) The possession of a tenant for life is not adverse to the reversioner or remainder-man. The life tenant can not, by his acts and declarations, make his possession adverse so as to enable himself, or others claiming under him, to invoke the statute of limitations. ""Keith v. Keith, 80 Mo. 125; ""Salmon's Adm'r v. Davis, 29 Mo. 176. (3) Where a mistaken boundary line is assumed by the parties to be the true line, but each only claims, and only intends to claim, to the extent of his paper title, such possession is not adverse to the true owner. ""Majors v. Rice, 57 Mo. 384; ""Houx v. Batteen, 68 Mo. 84. It will be presumed that the intention was to hold only to the true line. ""Hamilton v. West, 63 Mo. 93. (4) The description in the conveyance of the Blumenthal heirs, of December 3, 1890, in which Emilie W. Blumenthal and defendant Jennie Broch joined, was sufficient. A glance at the plat, with the description of parcels 2 and 3 before it, will confirm the court in this view better than the citation of a page of authorities.
This is an action in ejectment to recover possession of a parcel of land in the city of St. Louis, described in the petition as follows:
"A certain tract or parcel of land lying and being in the city of St. Louis and state of Missouri, and in city block number two thousand, eight hundred and ninety (2890) of said city of St. Louis, beginning at a point in the east line of an alley in said block, seventy-five feet north of the north line of Elwood street, and running thence northwardly along said alley line a distance of thirty-four feet, thence eastwardly thirty-two feet in a line parallel with the north line of Elwood street to a point, thence southwardly thirty-four feet in a line parallel with said alley line to a point, thence westwardly in a line parallel with said north line of Elwood street, a distance of thirty-two feet, to the place of beginning."
The petition is in common form; the answer a general denial, and a plea of the statute of limitations. The case was submitted to the court without a jury. Judgment for the plaintiff and the defendant appeals.
The facts are undisputed. In 1874 Augustus A. Blumenthal, senior, was the owner of the southeast quarter of said block number 2890, on the southwest corner of which was a small double brick house fronting thirty-four feet, two inches on Elwood street. In that year he put his daughter, Amelia W. Blumenthal, in possession of this house and the ground in the rear of it, running back one hundred and nine feet, around which he caused a fence to be built. On the ninth of December, 1875, he executed a deed conveying the lot to his son, Augustus A. Blumenthal, junior, in trust for the said Amelia W. for life, remainder in fee to the heirs of the grantor, by the following description: "A certain lot of ground situated in south St. Louis, in the county of St. Louis, state of Missouri, fronting thirty-two feet on the north side of Elwood street, and running of that width seventy-five (75) feet to a lot of land in the same block, being a part of lot number 3, of block number 41, of Eiler's survey of the town of Carondelet, city block number two thousand, eight hundred and ninety (2890), bounded north by land of Blumenthal, east by the same, the grantor, south by Elwood street and west by an alley."
It will be observed by the following diagram of the premises that this deed did not include the rectangular piece of ground, thirty-two by thirty-four feet, designated on the diagram by shaded lines, which is the land sued for, and which was within the inclosure aforesaid:
[SEE ILLUSTRATION IN ORIGINAL]
On the tenth of March, 1876, Augustus A. Blumenthal, senior, died, seized of the real estate in said quarter block not conveyed in said deed. By deed, dated the third of December, 1890, the heirs at law of the said Augustus A. Blumenthal, senior, deceased, including the said Amelia W. and the said Augustus A. Blumenthal, junior, and the defendant, Jennie Broch, who also signed and acknowledged the deed as trustee of the said Amelia, conveyed all their interest in the real estate in said quarter block to Berthold W. Blumenthal, by the following description:
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