Campbell v. Johnson

• Citation: 44 Mo. 247
• Parties: ANNA CAMPBELL et al., Respondents, v. GABRIEL JOHNSON, Appellant.
• Decision Date: 31 July 1869
• Court: United States State Supreme Court of Missouri

44 Mo. 247

ANNA CAMPBELL et al., Respondents,

v.GABRIEL JOHNSON, Appellant.

Supreme Court of Missouri.

July Term, 1869.

Appeal from Fourth District Court.

Hall & Reed, for appellant.

The description in the deed is too vague to convey the forty acres in controversy. (1 Greenl. Ev. § 301, and authorities cited.) Plaintiffs having recovered the purchase money for said forty acres from defendant on the ground that they had no conveyance therefor, are estopped from setting up a title to the same against defendant. (1 Greenl. Ev. §§ 207-8; Taylor et al. v. Zepp, 14 Mo. 482; Chouteau et al. v. Goddin et al., 39 Mo. 250, and authorities cite

H. M. & J. B. Porter, and John R. Christian, for respondents.

I. A call in a deed for boundary will prevail over a call for quantity. (Whittelsey v. Kellogg, 28 Mo. 404; Orrick v. Bower, 29 Mo. 210.)

II. The writing signed by Anna Campbell is not such an admission as will amount to an estoppel in this suit. If it contains any admission, it was made long after the money was paid, was never acted upon, and did not in any manner affect the parties. (Merriweather v. Lewis, 9 B. Monr. 179; McAfferty et al. v. Conover, 7 Ohio St. 105; Bocock and Wife et al. v. Pavey et al., 8 Ohio St. 281; 1 Greenl. Ev. § 207.)WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment, brought in the Randolph County Circuit Court, for the northwest fourth of the southwest quarter of section eleven, township fifty-three, range sixteen, lying in said county. The defendant answered, denying plaintiff's right to the land, and for a defense stated that on a given day he sold to plaintiff the land mentioned in the petition, and made, or attempted to make, a conveyance for the same, and supposed that he had properly conveyed it to plaintiff; that in a short time thereafter, being on the eve of leaving the State, the plaintiff sued him by attachment for the price of the land in controversy, alleging that the defendant had not conveyed the land in his said deed; that thereupon he paid plaintiff the amount claimed in the attachment suit, and kept and retained possession of the land. The deed and the record of the attachment proceedings, together with the receipt showing payment by the defendant, were all given in evidence. The Circuit Court gave judgment for the plaintiff, which was affirmed on appeal in the District Court, and the case is now brought up for revision.

It is contended by the counsel for the defendant that the judgment should be reversed for two reasons: first, because the deed by which the plaintiff sought to maintain title to the premises was void for uncertainty; secondly, on the ground that the plaintiff, having disclaimed the title on account of the alleged defective conveyance, and brought suit for the purchase money and recovered the same, was estopped from setting up any further claim to the land. The deed purports to convey the defendant's farm, consisting of three hundred and thirty-two acres. The land is divided and described by legal subdivisions, according to the United States surveys, and includes seven distinct tracts. The only designation in the deed which would include and convey the forty-acre tract sued for is as follows: “the southwest quarter of section eleven, containing forty acres.” This description, by rejecting the quantity of acres, would pass the title to the whole quarter-section. That such was not the intent of the maker of the deed is demonstrable, from the fact that one of the other tracts conveyed is the southwest fourth of the same quartersection. The other tracts contained in the deed are all set out according to their legal subdivisions, with the number of acres they are supposed respectively to contain, attached. A quartersection, by the regular survey, includes one hundred and sixty acres; and to give effect to the deed according to its literal import, the plaintiff would have eighty acres more than she contracted for, and by rejecting the irregular description she fails to obtain the requisite amount by forty acres. But it is a well-known rule of construction that a call for quantity in a deed must yield to a more definite description by metes and bounds. The quantity of land conveyed is generally mentioned in the deed; but without an express averment or covenant as to quantity, it will always be regarded as a part of the description merely, and it will be rejected if it be inconsistent with the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries. It aids, but ordinarily does not control, the description of the granted premises. (3 Washb. Real Prop., 3d ed., 348.) In this, as in other cases, the intention should be sought after and carried out, and the identity of the land ascertained, by a reasonable construction of the language used. But if the land granted be so inaccurately described as to render its identity wholly uncertain, then it is admitted the grant is void. (Boardman v. Reed, 6...