Collins v. Andriano
| Citation | 175 S.W. 194,264 Mo. 475 |
| Parties | ALBERT COLLINS v. MAX ANDRIANO, Appellant |
| Decision Date | 30 March 1915 |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Circuit Court. -- Hon. W. R. Amick, Judge.
Reversed and remanded.
Vinton Pike for appellant.
(1) By the statute (Sec. 2387), as well as by general rules of pleading, plaintiff was required to describe the premises he seeks to recover possession of. Livingston Co. v Morris, 71 Mo. 603; Bricken v. Cross, 140 Mo 166. In territorial measurement "strip" implies a piece of land having more length than breadth. This description is no better than "all that part of the east half . . . containing sixteen acres, more or less." County v. Morris, 71 Mo. 603. The petition describes nothing. Kyser v. Cannon, 29 Ohio St. 359. Is fatally defective. White v. Hapeman, 43 Mich. 267; DeClemente v. Winstanley, 28 N.Y.S. 513. (2) The land described in the verdict cannot be the equivalent of that in the petition, for the latter describes nothing. "Lands sued for" is surplusage, because the particular description following is complete without it and is unaffected by it. The fence is a monument on the ground but it may be outside what was intended by "strip." The "southeast corner of the house" may also be outside, and 75 or 100 feet south of the North boundary of the "west eighteen inches," which may or may not be identical with the "front of the yard." Speculation as to want of identity between "strip" and the ground described in the verdict may be persued indefinitely. Smith v. Jenks, 10 Serg. & R. 153; Harrisburg v. Crangle, 3 W. & S. 462; Hunt v. McFarland, 38 Pa. St. 69; Nolan v. Sweney, 80 Pa. St. 77; Load v. Philips, 36 Tenn. 566; Bradford v. Sneed, 56 So. 532; Munger v. Grinnell, 9 Mich. 544; Miles v. Knott's Lessee, 12 Gill & J. 442; McCullough v. Railroad, 106 Ga. 275; Abbott v. Roach, 113 Ga. 510. (3) The "surveys" of Floyd and Van Natta are not monuments on the ground. Hahn v. Cotton, 136 Mo. 224. Clearly they did not mark the line; for, if so, the jury would have referred to the marks. This part of the verdict means no more than "the line testified to by Floyd and Van Natta, or by others as having been run by them." If Floyd and Van Natta made a diagram of their surveys it is no part of the record or files in the case, nor of the deed, or any record of the county. This point has been many times before the courts, and ruled with the defendants. Smith v. Brotherline, 62 Pa. St. 471; Stewart v. Speer, 5 Watts, 79; Martin v. Martin, 17 S. & R. 431; Hagey v. Detweiler, 35 Pa. St. 409; Railroad v. Jordan, 87 Cal. 23; Alexander v. Wheeler, 69 Ala. 342.
William E. Stringfellow for respondent.
(1) A general description of land in a petition in ejectment is sufficient foundation for a definite verdict. 15 Cyc. 93; Barclay v. Howell, 6 Peters (U.S.), 498; R. S. 1909, secs. 2387, 2388. (2) Any indefiniteness in the petition was cured by the verdict. There was no necessary averment omitted from this petition. It set out fully all necessary averments to make a cause of action. The fault, if any, is merely that the land was not described definitely enough. (a) If the defendant had desired the land sued for to be more definitely described, he should have filed a motion to make the petition more definite and certain. Cockrell v. Stafford, 102 Mo. 57; Macadam v. Scudder, 127 Mo. 345; Ball v. Neosho, 109 Mo.App. 683. (b) A petition which states a cause of action defectively is good after verdict. Bank v. Leyser, 116 Mo. 73; Hurst v. Ashgrove, 96 Mo. 173; Young v. Prentice, 105 Mo.App. 565; Robinson v. Life Ins. Co., 105 Mo.App. 571; Scannell v. Transit Co., 103 Mo.App. 513; Thomasson v. Ins. Co., 217 Mo. 485; Nowell v. Mode, 132 Mo.App. 232; Optical Co. v. Richards, 62 Mo.App. 408; Murphy v. Ins. Co., 70 Mo.App. 78; Jones v. Philadelphia, 78 Mo.App. 296; Hitchings v. Maryville, 134 Mo.App. 712; State ex rel. v. Reynolds, 137 Mo.App. 261; Wilson v. St. Joseph, 139 Mo.App. 557; 31 Cyc. 766; Doherty v. Kansas City, 105 Mo.App. 173. (c) A verdict or judgment will cure substantial as well as formal defects. 31 Cyc. 768; Bank v. Leyser, 116 Mo. 51; Spurlock v. Railroad, 93 Mo. 537; Wilcoxson v. Darr, 139 Mo. 675; Smith v. Smith, 201 Mo. 533; Grove v. Kansas City, 75 Mo. 672; State v. Webster, 53 Mo. 135; Elfrank v. Seiler, 54 Mo. 134; State v. Cowell, 125 Mo.App. 348; Ball v. Neosho, 109 Mo.App. 683; Robinson v. Ins. Co., 105 Mo.App. 567. (d) A verdict cures a defective description of property. 31 Cyc. 764, 767; Richardson v. Farmer, 36 Mo. 44; Garth v. Calwell, 72 Mo. 22; Heman v. Allen, 156 Mo. 537, affirmed in 81 U.S. 402. (e) When the description of land in a petition in ejectment is not sufficiently definite, the jury should definitely describe the land found for plaintiff. Hunt v. McFarland, 38 Pa. St. 69; Black v. Black, 74 F. 978. (f) Error not affecting the substantial rights of the parties should be ignored. Pomeroy v. Benton, 57 Mo. 550; Nolan v. Railroad, 250 Mo. 602. (3) The verdict is good. The jury found definitely for the possession of a three-cornered strip which they bound on one side by the west side of plaintiffs' property, on the second side by the fence erected by defendant Andriano on plaintiffs' land, and on the third side by the front of the yard. These bounds are perfectly definite and clear. The last part of the verdict, "as shown by the surveys of William H. Floyd, Jr., and George S. Van Natta," is surplusage. Muir v. Meredith, 82 Cal. 19; Kouns v. Lawall, 5 Ky. 236; Lemon v. Hartsook, 80 Mo. 22. (a) Description by lot and block is sufficient. Alexander v. Campbell, 74 Mo. 142; Ramsey v. Henderson, 91 Mo. 560; Hope v. Blair, 105 Mo. 85; Taylor v. Railroad, 163 Mo. 183; Tettley v. McElmurry, 201 Mo. 382; Summett v. Summett, 208 Mo. 501; Mulligan v. Fritz, 226 Mo. 189; Prior v. Lambeth, 78 Mo. 538; Mulherin v. Simpson, 124 Mo. 611; Clark v. Bettelheim, 144 Mo. 258; Granby M. & S. Co. v. Davis, 156 Mo. 422; Lane v. David, 172 Mo. 167; Brooks v. Gaffin, 196 Mo. 351; Stumpe v. Kopp, 201 Mo. 412; Crossett v. Ferrell, 209 Mo. 704. (b) That is certain which can be made certain. If there can be any question that the description of the land in the verdict and judgment is not of itself certain, the maxim that that is certain which can be made certain applies. It can hardly be disputed that the language used in the verdict and judgment at least gives the officer executing the writ sufficient information so that he can with no difficulty ascertain just exactly what land was covered by the verdict and judgment. Buse v. Russell, 86 Mo. 216; Baker v. Carrington, 68 N.Y.S. 405; Lockwood v. Drake, 1 Mich. 14; Greeley v. Thomas, 56 Pa. St. 25.
Plaintiff brought ejectment in the circuit court of Buchanan county and had judgment. Defendant appealed for that the record is erroneous. There is no bill of exceptions. The errors urged are alleged to be in the petition, and in the verdict. The petition, omitting the prayer for judgment and formal parts, is as follows:
"Comes now the plaintiff, and for his cause of action states that he and his wife, Agnes Collins, are the owners by the entirety of lot 23 and the east ten feet of lot 22, in block 3, Landis' addition to the city of St. Joseph, Buchanan county, Missouri, and on and prior to the 12th day of March, 1911, plaintiff was entitled to and was enjoying the peaceable possession of said property; that afterwards, to-wit, on or about the 13th day of March, 1911, the plaintiff then being so entitled to the possession of said property, the defendant entered into said premises and took possession of a strip off of the N. fifty feet of the west eighteen inches of same, to plaintiff's damage in the sum of $ 100, and unlawfully withholds from plaintiff the possession thereof."
The verdict, which is complained of, signature and formal parts omitted, reads thus:
"We, the jury in the above entitled cause, find for plaintiff for possession of the lands sued for, being that part of the east ten feet of Lot twenty-two (22), block three (3), Landis's addition, lying between the fence erected by Andriano and now standing running from the southwest corner of the house to the front of the yard, and the west line of said ten feet, as shown by the surveys of William H. Floyd, Jr., and George S. Van Natta."
The judgment followed the above verdict and was as to the description therein, responsive thereto.
I. It is contended (1) that the petition does not state any cause of action; (2) that the verdict being, as it is alleged, special, is insufficient, and (3) that it is so vague and uncertain as to be void.
By a reference to the petition upon which the case was tried it will be seen that the title to a strip off of two parcels of land, or off one parcel, which consists or is made up of two separate lots or tracts, is averred to be in plaintiff and his wife as tenants by the entirety, that is to say, all of "lot 23 of block 3 and the east ten feet of lot 22 of said block 3 in Landis's addition to the city of St. Joseph," and that defendant, as it is further averred, "took possession of a strip off of the N. fifty feet of the west eighteen inches of same." It may be inferred from the petition, but it is not alleged, and except by such inference it does not appear therefrom, that said lot 23 and the east ten feet of lot 22 are contiguous and together form one compact parcel. But it is just as easy to infer that the parcels are separate and distinct; in which case it is not possible to say to what the word "same" refers, or from which lot the "same" is to be taken, or the width of the strip which is to be carved "off the north fifty feet of the west eighteen inches." No difficulty was incurred, we apprehend, upon the trial in exactly and...
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