Bradshaw v. Bradbury

• Decision Date: 31 October 1876
• Citation: 64 Mo. 334
• Parties: ENOCH BRADSHAW, et al., Plaintiffs in Error, v. WILLIAM BRADBURY, Defendant in Error.
• Court: Missouri Supreme Court

64 Mo. 334

ENOCH BRADSHAW, et al., Plaintiffs in Error,

v.WILLIAM BRADBURY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Cole County Circuit Court

E. L. Edwards & Son, for Plaintiffs in Error.

J. L. Smith, Att'y Gen'l, for Defendant in Error, cited: Jennings vs. Brizadin, 44 Mo. 332; Newsom vs. Prior, 7 Wheat. 10; Henry vs. Thompson, 6 Cow. 178; Seaman vs. Hogeboom, 21 Barb. 398.

HENRY, Judge, delivered the opinion of the court.

This was an action of ejectment, instituted in the circuit court of Cole county by plaintiffs, who are husband and wife, against defendant, to recover a lot of land in Jefferson City, described on the plat of said city as “lot No. 142.” The petition is in the ordinary form, and the answer a general denial.

At an adjourned term of said court, held in November, 1874, there was a trial of said cause by the court without the intervention of a jury. Both parties claim under the State of Missouri.

Plaintiffs claim through James Logan, to whom George W. Miller, then Commissioner of the Permanent Seat of Government, on the 6th day of December, 1837, executed a deed, the effect of which will be considered hereafter. Cynthia Bradshaw was the widow of James Logan, and after his death intermarried with Enoch Bradshaw.

By his last will and testament James Logan devised to Cynthia, during her life, all of his real estate, and if he had any title to the lot in question it passed to Cynthia, under his last will, for her life. The plaintiffs introduced in evidence the deed from George W. Miller, Commissioner as aforesaid, to James Logan, which conveyed to said Logan (we quote the exact language of the deed) “the following described lot or parcel of ground, known and described on the plat of said city of Jefferson as lot number (142) one hundred twenty-four (124), for the sum of forty-two dollars.”

There is nothing else in the deed indicating which lot the commissioner intended to convey, and the question is, which lot did the deed convey? If it conveyed lot No. 124, the judgment of the circuit court was for the right party, and it is unnecessary to consider the other questions arising on instructions or the admission or exclusion of evidence.

No resort can be had to parol evidence to show which lot was intended by the description. If there is any ambiguity, it is patent. The rule that a deed is to be construed most strongly against the grantor would give the grantee one of the lots, but it would give him, not the one of his choice, but that one which, upon established rules of construction, it was the probable intention to convey. “When more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake could be committed, and that be rejected in regard to which mistakes are most apt to be made. (2 Washb. Real Prop. 631.)

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