Charles v. Patch

• Decision Date: 31 October 1885
• Citation: 87 Mo. 450
• Parties: CHARLES et al., Plaintiffs in Error, v. PATCH.
• Court: Missouri Supreme Court

87 Mo. 450

CHARLES et al., Plaintiffs in Error,

v.PATCH.

Supreme Court of Missouri.

October Term, 1885.

Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

REVERSED.

J. K. Cravens and Boggess & Moore for plaintiffs in error.

(1) The land described in the petition is identified by the evidence as a part of that described in the deed from Coffman and Gregory to Elizabeth Charles, and was during all the time well known in its vicinity by the descriptions applied to it in the deeds offered in evidence. This being so, the land was sufficiently described in all of said deeds, and the plat referred to in them became a part of said deeds. Tethrow v. Anderson, 63 Mo. 96; Means v. de Labeigne, 50 Mo. 343; Mercier v. Ry., 54 Mo. 506. (2) Parol proof is admissible to identify the subject of a grant. McBride v. Allman, 53 Mo. 551; Adkins v. Moran, 67 Mo. 100. (3) Coffman and Gregory are the common source of title of both plaintiffs and defendant. Holland v. Adair, 55 Mo. 40; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Union Bank v. Maynard, 51 Mo. 548. (4) Elizabeth Charles, under the deed to her, took only a life estate with remainder in fee to the plaintiffs, her children. R. C., 1845, p. 219, sec. 5; R. C., 1855, p. 355, sec. 5; Chiles v. Bartleson, 21 Mo. 344; Farrar v. Christy's Adm'r, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; Ford v. Flint, 40 Vt. 382; Tesson v. Newman, 62 Mo. 198. (5) There was no fraud either in law or in fact in the purchase and taking of title in the name of Elizabeth Charles. Pepper v. Carter, 11 Mo. 540; Payne v. Stanton, 59 Mo. 158; Read v. Livingstone, 3 John. Ch. 481; Sexton v. Wheaton, 8 Wheat. 229. Besides the question should have been submitted to the jury. (6) The defendant can not claim that the holding of Elizabeth Charles, or his own holding under her, was of any greater estate than that of the record title, nor that they held adversely to the plaintiffs. Wash. Real Prop. (3 Ed.), top page 106, side page 92, sec. 18, note; Salmons v. Davis, 29 Mo. 176-81; Sutton v. Casseleggi, 77 Mo. 397; 5 Mo. App. 111-122; Ford v. Flint, 40 Vt. 382. The presumptions are all in favor of the plaintiffs. Watson v. Bissell, 27 Mo. 220. The defendant cannot claim under the deed to Mrs. Elizabeth Charles, and at the same time claim adversely to the plaintiffs. Ford v. Flint, supra; Chouquette v. Barada, 33 Mo. 249-60. In as much as the defendant has shown no title other than the deed under which the plaintiffs claim, the plaintiffs must recover. Dale v. Faivre, 43 Mo. 556; Merchant's Bank v. Harrison, 39 Mo. 433; Morfleet v. Russell, 64 Mo. 176-8-9; 2 Greenleaf's Evid. 307.

C. O. Tichenor for defendant in error.

(1) Where a map or plat is referred to in a deed, it becomes an essential and material part of it, and is to have the same force and effect as if copied into the deed; hence, one can no more testify as to the contents of the plat than as to other parts of the deed. Walker v. Boynton, 120 Mass. 349; Birmingham v. Anderson, 48 Pa. St. 260; Com. v. McDonald, 16 S. & R. (Pa.) 391; Orrick v. Bower, 26 Mo. 212; Rutherford v. Tracy, 48 Mo. 325. (2) There was no evidence tending to show any ambiguity as to the description in the deed in controversy, and hence parol evidence relating thereto was inadmissible. Jackson v. Sill, 11 John. 215; Hardy v. Mathews, 38 Mo. 124; Schreiber v. Osten, 50 Mo. 515; Bradshaw v. Bradbury, 64 Mo. 334. Where parol evidence is admissible to locate the land described in a deed, yet if there was no lot 500 on the plat, no legal title was transferred, and if a mistake was made it could be corrected, but not in ejectment. Reed v. Lammel, 26 Minn. 306; Shelton v. Heatherly, 16 Mo. 128; Bell v. Dawson, 32 Mo. 79; Holme v. Stantman, 35 Mo. 293; Jennings v. Brizeadine, 44 Mo. 333. (3) What are the boundaries is a matter of law; where they are is a matter of fact. Clark v. Wagoner, 0 N. C. 707; Whittelsey v. Kellogg, 28 Mo. 404. A surveyor cannot testify as to the legal interpretation to be given a survey. Ormsby v. Ishmen, 10 Casey, 462; Blumenthal v. Roll, 24 Mo. 113. McCoy was allowed, against defendant's objection, to testify as to the contents of the plat, which he could no more do than any other witness. It was an attempt to establish title by mere oral statements, as was attempted in Turner v. Williams, 76 Mo. 617. Plaintiffs could not, under the circumstances, make out their case without introducing a plat of the town of Kansas. Menkins v. Blumenthal, 19 Mo. 496. Charles had deed made to his wife to protect himself in case he failed in business. Where a grantor makes a conveyance which is voluntary, and afterwards conveys the same land for value, it cuts out the first deed. Doe v. Manning, 9 East, 59; Doe v. James, 16 East, 212; Buckle v. Mitchell, 18 Ves. Jr. 100; Roberts v. Anderson, 3 John.

Ch. 377; Salmon v. Bennett, 1 Com. 554. If the deed to Mrs. Charles was made with fraudulent intent, it was as if it never existed. Without it the equitable title was perfect in Charles, and when he executed the deed of trust he conveyed it, and his wife released her dower. Fox v. Clark, Walker's Ch. 535; Henderson v. Dickey, 50 Mo. 164.

RAY, J.

This is a suit in ejectment to recover the possession of the real estate described in the petition as follows: Part of a certain tract of land formerly known as land or lot five hundred, in the orginal survey of the City of Kansas, commonly called Old Town, as the same is marked or designated on the recorded plat of said original survey and described as follows: “Commencing at the southwest corner of Fifth and Wyandotte streets in the City of Kansas; thence westwardly along the south side of Fifth street; fifty-five feet, thence southwardly at right angles with Fifth street, and parallel with Wyandotte street, to the line between townships forty-nine and fifty, range thirty-three; thence eastwardly along said township line to the west line of Wyandotte street; thence northwardly along the west line of Wyandotte street to the place of beginning.” The petition is in the usual form. Suit was commenced March 24, 1876, and the ouster laid February 19, 1876. The defendant answered by general denial only. The cause was submitted to a jury, and the plaintiffs, to support the issues on their part, offered a variety of testimony, documentary and oral, the purport and nature of which will hereafter be noticed in the progress of this opinion.

At the close of the plaintiffs' case, the court, by way of demurrer to the evidence, instructed the jury at the request of the defendant, that under the pleadings and the evidence the plaintiffs could not recover. Whereupon the plaintiffs took a non-suit with leave to set the same aside, and after an unsuccessful motion for that purpose brought the case to this court by writ of error. The propriety of this ruling is the question now before us. In order to determine that question it will be necessary to state and consider only such portions of the evidence as may be material to the points in issue. It appears from the evidence thus offered by the plaintiffs, “that Coffman and Gregory, on the 20th day of June, 1855, for the consideration of one hundred and twenty-five dollars, by deed of general warranty, granted, bargained and sold unto Elizabeth Charles, the wife of Robert Charles, and the heirs of her body, and to their use and benefit forever,” the following described lot or parcel of land situated and being in the town of Kansas, in Jackson county, Missouri, namely: “Lot number five hundred (500) as shown and designated on the recorded plat of said town of Kansas,” to have and to hold the same with all the privileges and appurtenances thereto belonging unto her, the said Elizabeth Charles, and the heirs of her body and their assigns forever. This deed was duly acknowledged and recorded in the proper office on August 21, 1855. Afterwards, on November 5, 1857, the said Robert Charles and Elizabeth, his wife, by deed of trust of that date, sold and conveyed said lot or parcel of land to John Campbell, trustee for Alexander & Lansing, for the purpose of securing an indebtedness of the said Robert Charles to the said Alexander & Lansing for the sum of $1,990.79, evidenced by his promissory note of that date, due and payable eight months thereafter at six per cent. from date. This trust deed describes the property thereby conveyed as: “Lot number five hundred situated on the west side of Wyandotte street, and south of Fifth street, and so recorded in the plat of Kansas City in the county of Jackson, state of Missouri.”

At a sale of this property, under said trust deed, thereafter made, it appears that said Alexander & Lansing became the purchasers thereof and received from said trustee a deed therefor; and that conveyances thereof were subsequently made by Alexander to McCoy, and by McCoy to Squires, and also by said Lansing to Squires, who claimed to own and hold the same by means of said conveyances, all of which were offered in evidence by the plaintiffs; and all of which, in describing the property, follow with some variation, but substantially the description contained and employed in said deed of trust: That is to say the deed from Campbell, the trustee, to Alexander & Lansing describes it as, “Lot number five hundred (500), situated on the west side of Wyandotte street and south of Fifth street, and so recorded in the plat of Kansas City,” etc. The deed from Alexander to McCoy describes it as, “One undivided half of all that parcel or lot of land known and described on the recorded plat of Kansas City, Jackson county, Missouri, lot numbered five hundred (with the exception hereinafter stated), situated on the south side of Fifth street and west of Wyandotte street.” The deed from McCoy to Squires describes it as, “Part of a lot of ground situated on the southwest corner of Fifth and Wyandotte streets, Kansas City, the same being numbered on the first recorded plat of said...