Cole v. Mueller

• Decision Date: 30 March 1905
• Citation: Cole v. Mueller, 187 Mo. 638, 86 S.W. 193 (Mo. 1905)
• Parties: STERLING P. COLE v. WILLIAM J. MUELLER, Appellant
• Court: Missouri Supreme Court

86 S.W. 193

187 Mo. 638

STERLING P. COLE v. WILLIAM J. MUELLER, Appellant

Supreme Court of Missouri, Second Division

March 30, 1905

Appeal from Jefferson Circuit Court.-- Hon. Frank R. Dearing Judge.

Affirmed.

Kleinschmidt & Reppy for appellant.

(1) Without an express averment or covenant as to quantity of land in a deed, it will always be regarded as part of the description merely, and will be rejected if inconsistent with the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries.Campbell v. Johnson,44 Mo. 247;Bricken v. Cross,163 Mo. 450;Whittelsy v. Kellogg,28 Mo. 404;Orrick v. Bower,29 Mo. 210;Mires v Summerville,85 Mo.App. 183;4 Kent, Com., 466; 3 Washburn on Real Property (4 Ed.), 402.(2) The rule of construction, that deeds must be construed most strongly against those executing them, should not be invoked until all other rules fail.Rules of construction are framed to be used as aids in arriving at the intention of the parties to the instrument to be construed.This intention, if consistent with the rules of law, must be carried out.Biddle v Vandeventer,26 Mo. 500; 3 Washburn (4 Ed.), 397;4 Am. and Eng. Ency.Law (2 Ed.), 802.(3) In construing a deed the court must place itself in the situation occupied by the parties at the time of the execution of the instrument.Speed v. Railroad,163 Mo. 125.(4) Bounding by another's land means along the line of such land.3 Washburn on Real Property (4 Ed.), 403;Peaslee v. Gee,19 N.H. 273;Bailey v. White, 41 N.H. 343.

Byrns & Bean for respondent.

(1) It is not the province of this court to determine the facts.The court tried the case on the proper theory, and this court will not interfere on the question of the weight of the evidence.Hamilton v. Boggess,63 Mo. 252;Sutter v. Rader,149 Mo. 307.(2) The northern and western boundary of plaintiff's land was purely a question of fact and appellant is bound by the verdict of the trial court.What the boundaries of a given tract of land are is for the court.Where they are is a question for the jury.4 Am. and Eng. Ency.Law (2 Ed.), 809;Shuly v. Lindell, 40 Mo. 354.

OPINION

FOX, J.

The plaintiff brought this suit in ejectment in the circuit court of Jefferson county, Missouri, by petition, in the usual form, for the recovery of the following described real estate, situate in the county of Jefferson, State of Missouri, to-wit: The north part of the southeast part of the northwest quarter of northeast quarter of section 31, township 39, range 5 east, more particularly described as follows: Beginning at a point on the east line of said tract sixty-four links north of the southeast corner thereof; thence north nine chains and ten links; thence west four chains and sixty links to center of road, from which the northeast corner of the foundation wall of the storehouse bears south 85.5 degrees east, 42.75 links distant; thence south 48.5 degrees west, 8 chains and 40 links to a cedar post corner; thence south 65 degrees east, 11 chains and 10 links, to place of beginning, containing 5 acres more or less; also sixty-five one-hundredths of an acre in south part of said tract inclosed by defendant's rail fence.

To this petition the defendant filed his answer, being a general denial of the allegations of plaintiff's petition.A jury being waived by both parties, the case was tried before the court.

It was agreed that John C. Cole was the common source of title.

The plaintiff to sustain the issues on his part, offered in evidence a deed dated the 22d day of October, 1888, from John C. Cole to S. P. Cole, recorded in the recorder's office of Jefferson county, Missouri, in book 32, page 147, which deed, among other property, conveyed to the plaintiff the following described real estate, situate in the county of Jefferson in the State of Missouri, to-wit: Also ten acres more or less in the southeast corner of the northwest quarter of the northeast quarter, and more particularly described as being bounded on the north and west by land formerly owned by Salathiel Cole, on the south by land of grantor, and on the east by the line dividing the northeast and northwest quarters of the northeast quarter, all in section thirty-one, township thirty-nine north, range five east.

Plaintiff testified that he was a son of John C. Cole and moved onto the property in question right after his father gave him the deed, and lived there until 1892; that his father died in 1891; that after he left, Mrs. Farrar took possession, and then Mueller; that defendant, W. J. Mueller, was in possession of the property.

It is admitted that the five acres of land involved in this suit formerly belonged to Salathiel Cole.The facts disclosed by the record make it apparent that neither plaintiff nor Mrs. Farrar, his sister, both of whom were children of John C. Cole, knew where the lines were which embrace the land in their respective deeds, under which they claim, and it is also manifest from this testimony that neither of them makes claim to any land except such as is conveyed by their respective deeds.Hence, the testimony of plaintiff or his sister, Mrs. Farrar, furnishes no aid in the solution of the questions involved.

J. B. Dover testified that he was deputy county surveyor and had been county surveyor forty-two years; that he surveyed the land in suit, and made the survey from the deed of John C. Cole to Sterling P. Cole, introduced in evidence by plaintiff, and that the land in question is included in that deed.

Defendant offered in evidence deed dated September 9, 1843, recorded in the recorder's office of Jefferson county, Missouri, in book F, at page 435, which deed is a deed wherein the interests of Jonathan Smith, John C. Cole and Salathiel Cole as tenants in common are divided, Jonathan Smith and wife conveying to John C. Cole and Salathiel Cole all of the west half of the northeast quarter of section thirty-one, township thirty-nine, range five east, south of the Selma road, while the said John C. Cole and Salathiel Cole and their wives conveyed to Jonathan Smith all of the land in west half of the northeast quarter of section 31 aforesaid, north of the Selma road.

Defendant further offered deed from Salathiel Cole and wife to John C. Cole, dated January 18, 1854, and recorded in the recorder's office aforesaid on April 18, 1854, in book M, at page 102, of said records, by which deed Salathiel Cole conveyed to John C. Cole his undivided interest in and to the west half of the northeast quarter of section 31, aforesaid, whereon the mill is situate, etc., and being the same land acquired by them from James M. White and Jonathan Smith, etc.

Defendant next offered a deed from John C. Cole and wife to Salathiel Cole for five acres of land, and which is the land in suit.

Defendant next offered the following deeds:

Deed from Jonathan Smith to Julius H. Baldwin, by which deed Smith conveyed to Baldwin "also a tract of 25 acres more or less, being the northeast part of a tract of 80 acres, being the west half of the northeast quarter of section 31 aforesaid."

Deed from Baldwin to Mathias Lepp, conveying same 25 acres more or less.

Deed from Mathias Lepp and wife to Salathiel Cole, conveying same 25 acres.

By sheriff's deed, the northwest quarter and the northeast quarter of section 31, township 39, range 5 east, except what is owned by J. C. Cole, is conveyed by the sheriff under execution to John C. Cole as the property of Salathiel Cole.

By trustee's deed under sale, W. J. Williams, as trustee, conveys to John C. Cole, among other lands, the west half of the northeast quarter of section thirty-one, township 39, range 5 east, containing 35 acres; this sale being under and by virtue of a deed of trust executed in 1879 by Salathiel Cole and wife to secure payment to John C. Cole and Thomas J. Donnell of the promissory note therein described.

By deed the plaintiff in this action and other heirs of John C. Cole, conveyed to Sarah C. Farrar, also one of the heirs of John C. Cole, among other land, all of the northwest quarter of the northeast quarter of section 31, township 39, range 5 east, that was not conveyed to Sterling P. Cole by J. C. Cole in his lifetime, containing 30 acres.

By deed Sarah C. Farrar conveyed the last above-described property to the defendant, W. J. Mueller, who, as testified to, was in possession at the time of the trial.

Mrs. Sarah C. Farrar testified on behalf of defendant, that she is a daughter of John C. Cole, and the person mentioned as grantee in deed from the heirs of John C. Cole.Witness further testified that she moved into the house on the premises in controversy as a tenant of her father, John C. Cole, and that after the execution of the deed to her from the other heirs of John C. Cole, she supposed that the house belonged to her, and understood that the house wherein she resided was the house where Salathiel Cole lived.On cross-examination witness stated that she did not know where the lines were, and that she only claimed thirty acres and did not intend to claim any of the land that was deeded to Sterling P. Cole.

Phillip Reilly, county surveyor, testified that the land which defendant has possession of is the land conveyed by John C Cole to Salathiel Cole; that he made a survey of the northwest quarter of the northeast quarter of section 31, and that defendant Mueller is not now in possession of any other land in said quarter section except that deeded to Salathiel Cole by John C. Cole.On cross-examination, Mr. Reilly testified that the land lying southeast of Selma...