Bruensmann v. Carroll

• Decision Date: 31 March 1873
• Citation: 52 Mo. 313
• Parties: LOUISA BRUENSMANN, (LATE SCHAEFFER) et al., Respondents, v. ANDREW CARROLL, Appellant.
• Court: Missouri Supreme Court

52 Mo. 313

LOUISA BRUENSMANN, (LATE SCHAEFFER) et al., Respondents,

v.ANDREW CARROLL, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Krum & Patrick, for Appellant.

The appellant stands by the doctrine of estoppel invoked, and by the total failure on the trial, to disprove his title and possession to lot 43, he being the owner and possessor of that lot.

Stewart & Ralston, for Appellant.

Where in a deed the general description is inconsistent with the particular description and also with the intention of the parties, as manifested by the deed itself, Courts will, in favor of the intention of the parties, reject the words of general description as a false demonstration. (2 Washb., on Real Prop., §§ 36, 37, 38.)

If the simple covenant of seizin be broken, the party is entitled to damages equal to the purchase money and interest. (Collier vs. Gamble, 10 Mo., 467; Rees v. Smith, 12 Mo., 347.)

WAGNER, Judge, delivered the opinion of the court.

By the record it appears that the parties were owners of adjoining lots, numbered 43 and 44, in Mills' addition to the city of St. Louis. The plaintiff owned and had a house situated on lot 44, and it was supposed by the parties that the house extended about nine inches on the side of lot 43, which was the property of defendant.

Whilst entertaining this belief, the plaintiff purchased of the defendant the strip of nine inches in length on the side of his lot supposed to be covered by her house, and paid him fifty dollars therefor.

The deed contained the statutory covenants of grant, bargain and sale, and the descriptive words after the granting clause, were as follows:

“A strip of nine inches more or less, off the east side of the east half of lot number forty-three, of block number two, in Mills' Addition to the city of St. Louis, or so much as is occupied of said lot by the house of the said party of the second part.”

Then follows a more particular description by metes and bounds. It was subsequently ascertained, that the house was entirely on lot 44, and that no part of it was on the defendant's lot 43. Plaintiff then brought this action, for an alleged breach of seizin, to recover the purchase money. The tria was before the Court, without the intervention of a jury, and there was a judgment for the plaintiff. The declarations of law given and refused will show the theory upon which the case was tried.

For the plaintiff there was a declaration, that if the Court found from the evidence, that defendant, when he conveyed to plaintiff, had neither title to nor possession of the nine inches, more or less, which he purported to convey, then the plaintiff was entitled to recover her consideration money and interest from the date of the deed. For the defendant the Court de clared, that if it was found from the evidence, that the house of plaintiff was wholly situate on lot 44, and it was further found from the evidence, that the description of the land in the deed, did not embrace or include any part of lot 44, then the plaintiff could not recover.

The Court refused two instructions...