Bollinger County v. McDowell

• Decision Date: 24 February 1890
• Citation: 13 S.W. 100,99 Mo. 632
• Parties: Bollinger County, Plaintiff in Error, v. McDowell
• Court: Missouri Supreme Court

13 S.W. 100

99 Mo. 632

Bollinger County, Plaintiff in Error, v. McDowell

Supreme Court of Missouri

February 24, 1890

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

W. K Chandler, Prosecuting Attorney, and Moses Whybark for plaintiff in error.

(1) The mortgage offered in evidence being a deed inter partes is not void for uncertainty of description. Cravens v Pettit, 16 Mo. 210; Evans v. Green, 21 Mo. 170; Charles v. Patch, 87 Mo. 450; Clemens v Rannels, 34 Mo. 579; Cato v. Stewart, 28 Ark. 146; Meyer v. Mitchell, 75 Alabama, 475; Sikes v. Shows, 74 Alabama, 382; Blake v. Doherty, 5 Wheaton, 359; 3 Washburn Real Property [4 Ed.] side page 632, chapter 5, sec. 4, pars. 44 and 45; Tiedeman on Real Property, sec. 832. (2) Parol evidence was admissible to show the location of the land on the ground that its reputation was well known by the description in the mortgage, and that it is the same land described in the petition. Means v. La Vergne, 50 Mo. 343; Long v. Higginbotham, 56 Mo. 246; Hardy v. Matthews, 38 Mo. 122; Orr v. How, 55 Mo. 328; Gatewood v. House, 65 Mo. 663; Shewalter v. Pirner, 55 Mo. 230; Livingston Co. v. Morris, 71 Mo. 603; Adkins v. Moran, 67 Mo. 100; McPike v. Allman, 53 Mo. 551; Baldwin v. Shannon, 43 N. J. L. 596; Thornell v. Brockton, 141 Mass. 151; Baucum v. George, 65 Alabama, 259. (3) The sheriff's deed in partition related back to the partition sale. Peter Yount was the purchaser at the partition sale, one of the grantees in the partition deed, and one of the mortgagors in the mortgage offered in evidence. R. S. 1879, secs. 3376 and 3377; Holladay v. Langford, 87 Mo. 577; Winfrey v. Work, 75 Mo. 55; Vancourt v. Moore, 26 Mo. 92; Porter v. Mariner, 50 Mo. 364; Leech v. Koenig, 55 Mo. 451; Lewis v. Curry, 74 Mo. 49. (4) Peter Yount could, before the sheriff deed was executed, transfer an interest in the land purchased, and the sheriff could then make a deed to him and his purchasers jointly, as was done in this case. Chapman v. Dougherty, 87 Mo. 617; Cravens v. Jordon, 33 Mo. 287; Herryford v. Turner, 67 Mo. 296; Massey v. Young, 73 Mo. 260; Miller v. Bledsoe, 61 Mo. 96.

M. R. Smith for defendant in error.

(1) The mortgage through which plaintiff claims title failed to show that Mary A. McDowell was the grantor, instead of her husband, and that it was her property to be conveyed, and not his, and for such failure said mortgage can convey no legal title belonging to Mary A. McDowell. Whiteley v. Stewart, 63 Mo. 360; Bradley v. Railroad, 91 Mo. 498; Atkinson v. Henry, 80 Mo. 153; Shroyer v. Nickell, 55 Mo. 264; 7 Cent. Law Jour. 182, and cases cited. (2) The heirs of Peter Yount, deceased, and Sarah Statler, deceased, and Conrad Statler, husband of said Sarah Statler, should have been made parties as pleaded in defendant's answer. 1 Blackstone, book 2, pp. 180, 192; 4 Wait's Act. & Def., pp. 172 and 173. The possession of one tenant is the possession of all. 4 Wait's Act. & Def., pp. 178-9 and 182; Warfield v. Lindell, 38 Mo. 561. Tenants in common should be sued jointly. 4 Wait's Actions and Defenses, p. 182; Green and Myer's Practice, secs. 755 and 765. To recover the entire possession all must be joined. Sedgwick and Wait on Real Actions, sec. 300; Gray v. Givens, 26 Mo. 291-303; Falconer v. Roberts, 88 Mo. 578. At common law one joint tenant could not sue, or be sued alone. Wait and Sedgwick on Real Actions, sec. 302; Bac. Abr. Joint Tenants "K," secs. 187-9. Such must be the rule, yet, unless changed by statute, the statute requires that the plaintiff must show on the trial that defendant actually ousted him. R. S. 1879, sec. 2248; Forder v. Davis, 38 Mo. 114. (3) The description of the premises in the mortgage is so ambiguous and uncertain as to be fatally defective; the ambiguity is patent, not latent, and hence parol evidence is not competent to explain it or identify the land. Davis v. Davis, 8 Mo. 58; Campbell v. Johnson, 44 Mo. 250; Hardy v. Matthews, 38 Mo. 124; 1 Sugden on Vendors, p. 169. The following are some of the cases in Missouri declaring deeds void for uncertainty of description, amounting to patent ambiguities: Evans v. Ashley, 8 Mo. 184, 185; Davis v. Davis, 8 Mo. 58; Clemens v. Rannels, 34 Mo. 579; Campbell v. Johnson, 44 Mo. 247; Holme v. Strautman, 35 Mo. 303; Jennings v. Brizeadine, 44 Mo. 332; Carter v. Holman, 60 Mo. 504; Bell v. Dawson, 32 Mo. 87. The ambiguity in this description arises upon the face of it and must therefore be a patent ambiguity. 1 Greenleaf Ev., sec. 297; Bradshaw v. Bradbury, 64 Mo. 334; Livingston Co. v. Morris, 71 Mo. 603.

OPINION

Barclay, J.

-- This is an action of ejectment in which there was a judgment for defendant in the trial court, to reverse which plaintiff has brought this writ of error.

Plaintiff's claim of title rests on a mortgage (over due) in which the land conveyed is thus described:

"The following described lots, tracts or parcels of land lying, being and situated in the said county of Bollinger and state of Missouri, to-wit: Beginning on a Spanish oak. Thence south nine degrees east, thirty-five chains to a hickory. Thence north eighty-one degrees east, sixty-three chains to a white oak. Thence north nine degrees west, thirty-five chains to a stake, and thence south eighty-one degrees west, sixty-three chains to the beginning, containing, in all of the above description, two hundred and forty-two acres and a half. Except, however, all that portion of said tract of land which lies on the west side of Whitewater, a stream of water running through said tract as above described, and also seven acres more of said tract lying on the east side of Whitewater, which said parts so excepted were sold off by Henry Yount, senior, during his lifetime, leaving one hundred and forty-two acres and a half remaining in said tract, and all lying on the east side of said Whitewater."

The circuit judge who tried the case ruled that this description was so vague and uncertain as to render the deed void, and excluded the parol evidence offered to elucidate it. This ruling is decisive of the case on the present record.

The mortgage in question was made by several parties, including defendant, to secure payment of a school-fund bond also executed by defendant and others to the county of Bollinger. Both are in the usual forms employed by counties in making loans of public school moneys.

It is to be noted at the very outset that this action is directly between the immediate parties to the conveyance, and what is said in the course of the opinion should be understood as limited to the exact case thus presented.

That parol evidence is sometimes admissible to clear up ambiguity in the descriptive part of a deed is elementary law, but the difficulty of determining in what particular cases such evidence should be admitted has not been entirely removed by such rules as the adjudged cases on the subject may be said to establish.

Examining the description in the deed here in question, without the aid of any extrinsic evidence, we find that it furnishes the following materials for the identification of the land:

The tract is in Bollinger county, Missouri. It is included within four lines. Its shape is an oblong square, thirty-five chains north and south, and sixty-three chains east and west. Its northwest corner is a Spanish oak; its southwest corner a hickory; its southeast corner a white oak, and its northeast corner a stake. The area of these boundaries is two hundred and forty-two and one-half acres. Whitewater is a stream flowing through it. That part of the tract on the west side of Whitewater is excepted, as well as seven acres more on the east side of Whitewater. These excepted portions were sold off by Henry Yount, Sr., during his lifetime. One hundred and forty-two and a half acres remain in the tract, and are conveyed, all on the east side of Whitewater.

To supplement it, plaintiff offered evidence tending to show that a certain body of land in the county had been long known in that locality by that description; that it had...