Clark v. Ferguson

• Decision Date: 31 October 1940
• Docket Number: 36686
• Citation: 144 S.W.2d 116,346 Mo. 933
• Parties: J. S. Clark and Ruth D. Clark v. Alice N. Ferguson and Don Ferguson, Appellants
• Court: Missouri Supreme Court

144 S.W.2d 116

346 Mo. 933

J. S. Clark and Ruth D. Clark v. Alice N. Ferguson and Don Ferguson, Appellants

No. 36686

Supreme Court of Missouri

October 31, 1940

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

John A. Gloriod for appellants.

(1) Defendants' motion to strike out plaintiffs' reply should have been sustained. A reply cannot be used to bolster the petition, nor to raise another or different cause of action. Rhodes v. Land Co., 105 Mo.App. 279; Mathieson v. Railroad Co., 219 Mo. 552; Plat v Parker, 161 Mo.App. 669. (2) A motion to strike is the proper procedure where a reply constitutes a departure. Philbert v. Burch, 4 Mo.App. 470; Magruder v Admire, 4 Mo.App. 133; Chemical Co. v. Lackawanna, 100 Mo.App. 164; Bowles v. Ry. Co., 187 S.W. 131. (3) This being a suit to quiet title, it was an action at law and cannot be converted into a suit to reform a deed. Hafner v. Miller, 252 S.W. 722; Peterson v. Larson, 225 S.W. 704; Thompson v. Stilwell, 253 Mo. 89; Turner v. Hine, 248 S.W. 933; Martin v. Kitchen, 195 Mo. 487. (4) Section 1520, Revised Statutes 1929, is to be construed in the same manner as ordinary procedure and the issues presented by proper pleadings. Wolz v. Venard, 253 Mo. 86; Peterson v. Larson, 225 S.W. 706. (5) Even though the issue of reformation of the deed in question was presented by plaintiffs' reply, then that relief should be denied because barred by the ten-year Statute of Limitations. Stark v. Zender, 204 Mo. 451. (6) The deed from Fergusons to Derry was a gift and cannot be the basis of an action to reform. Wells v. Smith, 129 S.W.2d 251; 23 R. C. L., p. 344, sec. 38. (7) Estoppel, even if properly pleaded, cannot avail plaintiffs, in this action. Estoppel is a weapon of defense and not of offense. City of Harden v. Cunningham, 226 S.W. 872. (8) No oral evidence should have been admitted.

Henson & Henson for respondents.

(1) By the pleadings this case was converted from an action at law into an equity proceeding. Roberts v. Adkins, 5 S.W.2d 70; Switch & Signal Co. v. Trust Co., 291 Mo. 68, 236 S.W. 62; Laws 1921, sec. 9284a, p. 557. (2) Alice N. Ferguson was not under disability to convey property at the time of the execution and delivery of the General Warranty Deed designated as plaintiffs' Exhibit 4, and Harry Ferguson survived his disability which ended November 3, 1919, and whatever title they might have acquired to the property described in said deed subsequent to the date thereof passed to the grantees named in said deed. Sec. 3507 R. S. 1929; Johnson v. Johnson, 170 Mo. 34; Ry. v. Smith, 170 Mo. 327; Roberts v. Adkins, 5 S.W.2d 73; Hamlin v. Hawkins, 61 S.W.2d 350; Wood v. Smith, 91 S.W. 85, 193 Mo. 484; Crosby v. Evans, 195 S.W. 515. (3) The intention of the grantors in a deed must control in the interpretation thereof. Shaw v. Bank of Dearborn, 23 S.W.2d 20; Strauss v. Nichols Land Co., 37 S.W.2d 505; Long v. St. Louis Union Trust Co., 57 S.W.2d 1071.

OPINION

Clark, J.

Appeal from the Circuit Court of Butler County. The suit is to quiet title to Lot 27 of the re-survey of Oakview Addition to the City of Poplar Bluff. The petition is in conventional form, alleging that plaintiffs are the owners in fee and in possession of the described lot; that defendants claim some title adverse to plaintiffs and praying for a decree vesting title in plaintiffs.

The answer of defendants claims fee simple title to the real estate and prays for a decree vesting title in defendants, but alleges that the property is erroneously described in the petition and that it should be described by metes and bounds as a part of Lots 25 and 26 of Oakview Addition. The answer also contains a count in ejectment.

Plaintiffs filed a reply alleging, among other things, that in 1905 one Thomas D. Ferguson, being the owner of certain described real estate, caused the same to be surveyed and platted into lots and streets as Oakview Addition, procured approval of the plat by the City Council and recorded the same in the office of Recorder of Deeds; that in 1908 the said Ferguson, being still the owner of said land, caused the same to be resurveyed, procured approval by the council of the new plat and recorded the same; that Thomas D. Ferguson died, testate, in 1911 leaving his widow, Anna Ferguson, and his son, Harry Ferguson, as the sole devisees of his real estate; that the widow renounced the will and elected to take the share of a child in the real estate; that in July, 1917, the said Harry Ferguson and wife and Anna Ferguson conveyed the lot now in suit to one Derry and wife, but erroneously described it as Lot 27 of Oakview Addition instead of Lot 27 of the re-survey of Oakview Addition; that plaintiffs, by mesne conveyances, are the owners of all the title of the said Fergusons; that since the date of the deed to the Derrys plaintiffs and those under whom they claim have paid all taxes, general and special, on said lot and that plaintiffs have constructed a residence thereon of the value of $ 7,500; the reply also alleges, by way of estoppel, that defendants' ancestor, Thomas D. Ferguson, conveyed other property in the Addition in accordance with the new plat and that all taxes, including taxes on property owned by defendants, have been assessed as described in the new plat.

Defendants moved to strike the reply on the ground it constitutes a departure from the petition. This motion was overruled and, after hearing the evidence, the court entered a decree adjudging title in the plaintiffs as prayed in their petition.

Plaintiffs' evidence abundantly sustains the allegations of their pleadings. This is not disputed by defendants, but they contend: (1) that the court erred in refusing to strike plaintiffs' reply; (2) that, on account of certain provisions of his father's will, Harry Ferguson was without power to convey and that this constitutes a fatal defect in plaintiffs' chain of title.

(1) Defendants' claim that plaintiffs' reply is a departure from their petition is expressed in defendants' motion to strike as follows: "the petition is a suit to quiet title, whereas the reply undertakes to base plaintiffs' right to recover upon the ground of estoppel and an action to reform a deed under which plaintiffs' claim is based."

We see no merit in these contentions. The reply does not contain a prayer to reform a deed. True, it alleges that "the land was erroneously described as Lot 27 of Oakview Addition . . . when the same should have been described as Lot 27 of the re-survey of Oakview Addition," but it is clear from both the petition and reply that plaintiffs are standing on the deeds as written. They claim that the last plat of Oakview Addition is an amendment to or substitute for the first plat and that all deeds were written in accordance with the last plat after it was recorded.

The evidence sustains plaintiffs in this contention. The second plat describes exactly the same land as the first plat, but rearranges the lots and lot numbers. For instance: on the first plat, Lot 27 lay on the north side of Lester Street with its longest dimensions extending east and west; while on the second plat, Lot 27 lies in the middle of the block on the south side of Lester Street, with its longest dimensions extending north and south. Lot 27 as shown on the first plat occupied the same position as the south portion of Lots 29 30 and 31 as shown on the second plat. Lots 29, 30 and 31 "as shown on the plat of the re-survey" were sold and conveyed by defendants' ancestor long prior to the date of the deed from the Fergusons to the Derrys conveying Lot 27. So, at the date of the latter deed (upon which plaintiffs' title is based) defendants' ancestor had already parted with the title to the property described as Lot 27 in the first plat and the only "Lot 27" which the Fergusons then owned was the lot of that number shown on the second plat. Undoubtedly that is the lot which the...