Calloway v. Henderson

• Decision Date: 02 July 1895
• Citation: 32 S.W. 34,130 Mo. 77
• Parties: Calloway, Appellant, v. Henderson
• Court: Missouri Supreme Court

32 S.W. 34

130 Mo. 77

Calloway, Appellant, v. Henderson

Supreme Court of Missouri, Second Division

July 2, 1895

Appeal from the St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

James E. Hereford and M. W. Huff for appellant.

(1) When there is a false call in a deed and it can be rejected and still leave sufficient to identify the land it will be rejected. Shewalter v. Pirner, 55 Mo. 218. (2) Whenever natural or permanent objects are embraced in the calls of a deed they absolutely control. West v Bretelle, 115 Mo. 653; Cooley v. Warren, 53 Mo 166; Mitchner v. Holmes, 117 Mo. 185; Clamorgan v. Railroad, 72 Mo. 139; Clamorgan v. Hornsby, 13 Mo.App. 550; Rutherford v. Tracy, 48 Mo. 325; Fenwick v. Gill, 38 Mo. 510. (3) The court erred in admitting against appellant's objections, statements of what the people in the neighborhood understood to be included in George Robertson's farm when the description included all of survey 2625. (4) Whenever a description refers to another deed, the description in the deed referred to becomes a part of the conveyance. West v. Bretelle, 115 Mo 653; Dolde v. Vodicke, 49 Mo. 98; Hays v. Perkins, 109 Mo. 102.

R. H. Stevens for respondent.

(1) The respondent contends that a particular description of the property conveyed by the deed, to wit, the farm known as the property of the late George Robertson, controls the general description as contained in the patent certificate. Particular descriptions will control and prevail over general descriptions. Grandy v. Casey, 93 Mo. 935; Rust v. Goff, 94 Mo. 511; Ellis v. Railroad, 40 Mo.App. 105. (2) Respondent contends that the general word used after the particular words of description renders the description ambiguous, and it is competent to show by parol testimony and the papers filed in the case and the sale books of the sheriff what land was actually sold at the partition sale, and what land was intended to be included in deed made in pursuance of the sale. Wolff v. Dyer, 95 Mo. 545; Bollinger County v. McDowell, 99 Mo. 632; Skinker v. Haagsma, 99 Mo. 208; Edwards v. Smith, 63 Mo. 119.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

Action in ejectment, for a tract containing thirty hundredths of an acre in United States survey number 2625, in St. Louis county. Ouster was laid June 2, 1891. The answer is a general denial.

The following facts were developed on the trial:

It was admitted by stipulation signed by the parties that from 1833 till 1879 or 1880 this tract in dispute was occupied by one Baber or his descendants who went into possession under and by permission of Sarah Robertson, the mother of George Robertson. That George Robertson died in 1879 or 1880 seized in fee of this tract and it was not a part of the farm known as the property of said Robertson.

In 1882 the heirs of George Robertson brought their action for partition of the following described real estate lying, being and situated in the county of St. Louis in the state of Missouri, to wit: One hundred and thirty-nine and seventy-five hundredths acres (139.75) more or less in United States survey number 2625 in township 46 of range 6, east of the fifth principal meridian and being all the land in said survey 2625, except twenty and twenty-five hundredths acres within the limits of the town of Bridgeton, formerly Village A. Roberts, and being the farm known as the property of the late George Robertson deceased; a more particular description of which will be found in a certain New Madrid patent certificate issued by the United States to Reinecke & Steinbeck or their legal representatives on the nineteenth day of May, 1874, and duly recorded in the office of the recorder of deeds for the county, now city, of St. Louis, Missouri, in book 496, at page 476, and to which reference is made; lot ten (10) in the town of Bridgeton in the county of St. Louis, Missouri, known as and designated on the plat of said town; also the west part of lot number forty-two (42) in the said town of Bridgeton, being ninety-two (92) feet front by three hundred and twenty (320) feet and ten (10) inches in depth; also part of lot nineteen (19) in said town of Bridgeton, fronting one hundred and nine and five twelfths (109 5-12) feet on St. Charles street by a depth of three hundred and twenty (320) feet and ten (10) inches. Also fifty-hundredths (.50) acre in United States survey 2625, township forty-six (46) north, range 6 east, now occupied by Christopher Brady under lease of George Robertson. Also one (1) acre in United States survey number 2625, township forty-six (46) north, range 6 east, bounded on the north by Moore, on the east by Weldon, on the south by Moore, and on the west by survey line.

A decree was rendered in that suit in which the property was described in the same words as those used in the petition. Under this decree the lands were sold and on September 1, 1882, the sheriff made the following report of sale:

"Patrick O'Malley being the highest, last, and best bidder, the land being lot ten (10) in the town of Bridgeton, for the sum of ten hundred and fifty (1050) dollars the same was stricken off and sold to him for that sum; and John A. Harrison being the highest and best bidder for the west part of said lot number two (2) in the town of Bridgeton for the sum of forty-five ($ 45) dollars, the same that was stricken off and sold to him for that sum; and Christ Brady being the highest and best bidder for said fifty hundredths (.50) acre, United States survey number 2625, for the sum of thirty-two and fifty hundredths ($ 32.50) dollars, the same was stricken off and sold to him for that sum; and George H. W. Heidorn being the highest and best bidder for said one acre in United States survey 2625 for the sum of eighty ($ 80.00) dollars, the same was stricken off and sold to him for that sum. And the first above described tract being one hundred and thirty-nine and seventy-five hundredths (139.75) acres in United States survey number 2625, all of the same being then and there by me offered for sale for a space of time was, for want of bidders, not sold."

On a renewed order the one hundred and thirty-nine and seventy-five hundredths acre tract was sold and a report of sale filed January 29, 1883. "Samuel James and Charles Castello being the highest, best, and last bidders for the one hundred and thirty-nine and seventy-five one hundredths (139.75) acres more or less (except about six acres lying north of and adjoining the said town of Bridgeton) in United States survey 2625 in township forty-six (46) north, of range six (6) east, of the principal meridian, and being the land included in said survey 2625 (except 20.25 acres within the limits of the town of Bridgeton, formerly Village A. Roberts and except the six (6) acres above described), and being the farm known as the George Robertson farm, and more particular description of which will be found in a certain New Madrid certificate issued by the United States to Reinecke & Steinbeck on the nineteenth day of May, 1874, and duly recorded, atc., for the sum of six thousand, nine hundred and thirty ($ 6,930.00) dollars, the same was stricken off and sold to them for that price.

And George H. W. Heidorn being the highest and best bidder for six (6) acres more or less of said tract of one hundred and thirty-nine and seventy-five hundredths acres (139.75) being all of that portion of said tract lying north of and adjoining said town of Bridgeton, for the sum of two hundred and fifty dollars ($ 250.00)."

On motion this sale was set aside and the order renewed. On June 21, 1883, a report of sale was filed from which it appears that at said sale said Bernard Schutte was the highest and best bidder for all that part of said real estate constituting the Robertson farm lying south of the town of Bridgeton and containing one hundred and thirty (130) acres of land more or less, at and for the price and sum of eleven thousand and twenty-five ($ 11,025) dollars, and the same was stricken off and sold to him for that sum.

And James C. Edwards was the highest and best bidder for the remainder of said real estate at and for the price and sum of five hundred and fifty ($ 550) dollars and the same was stricken off and sold to him for that sum.

In the sheriff's deed to Edwards it is recited that "whereas in the suit of said heirs for the partition of the following described real estate situated, lying and being in the county of St. Louis, state of Missouri, to wit, one hundred and thirty-nine and seventy-five hundredths (139.75) acres more or less in United States survey number 2625, township 46 north, of range 6 east, of the fifth principal meridian, and being all the land included in said survey number 2625, except twenty and twenty-five hundredths (20.25) acres within the limits of the town of Bridgton, formerly Village A. Roberts, and being the farm known as the property of the late George Robertson, deceased, a more particular description of which will be found in a certain New Madrid patent certificate issued by the United States to Reinecke & Steinbeck or their legal representatives on the nineteenth day of May, 1874.

"And James C. Edwards being the highest and best bidder for the following part of said real estate, became the purchaser thereof for the sum of five...