Cooper v. Deal
| Decision Date | 13 March 1893 |
| Citation | 22 S.W. 31,114 Mo. 527 |
| Parties | Cooper v. Deal, Appellant |
| Court | Missouri Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Iron Circuit Court. -- Hon. John L. Thomas, Judge.
Affirmed.
J. J. Russell for appellant.
(1) The petition of plaintiff does not state a cause of action. First. For the reason that it states no equity. It does not state facts showing either a mutual mistake of the parties or fraud on the part of the defendant Deal. The general allegation of fraud or mistake is not enough. Bliss on Code Pleading [2 Ed.] sec. 211. Second. For the reason that the plaintiff's right of action, if any ever existed, has long since been barred by the statute of limitations. The petition and evidence show that the deed was made and delivered October, 1875, about thirteen years before the suit was filed. Hoester v. Sammelmann, 101 Mo. 619. The right of action, if one existed, accrued to plaintiff in 1875 on the delivery of the deed, and the evidence of the plaintiff's witness and attorney, Sol Kitchen, shows the plaintiff was advised exactly of the words of the deed at the time of its delivery. (2) This is an action to reform a deed, and the question to be determined is whether or not there was fraud or mistake in its execution. Before the court should grant a decree to change a deed, which is the solemn act of the parties at the time, and that carries with it every natural and legal presumption of a correct expression of their contract, the evidence must be plain and conclusive. The same testimony is required to establish a mistake in a written instrument as is necessary to establish a trust. Leitensdorfer v. Delphy, 15 Mo. 160; Bunse v. Agee, 47 Mo. 270; Modrell v. Riddle, 82 Mo. 31; Burdette v. May, 100 Mo. 13. It is not pretended now that there was fraud on the part of the defendant, hence it is only left to determine whether there was a mistake. In order to determine the question of mistake, we should simply find whether Deal did or did not sell the land in dispute. For that purpose we respectfully call attention to the testimony. (3) This court is not concluded by the finding of the lower court upon the facts, but this is a proper case for the court to carefully consider and weigh all the testimony and render the proper judgment. Bradley v. Welch, 100 Mo. 258. There was no oral testimony offered except the two parties to the suit, and hence this court can very properly determine the weight that should be given to the evidence. The plaintiff failed to make out a case warranting the reformation deed.
Houck & Keaton for respondent.
(1) The petition states facts sufficient to constitute a cause of action, and the evidence fully sustains the allegations and warrants the judgment which should be affirmed. Gray v. Hanbeck, 31 Mo. 400; Revised Statutes, sec. 2039; Clark v. Clark, 86 Mo. 124; Corrigan v. Linney, 100 Mo. 280. (2) There is clearly a latent ambiguity in the deed. It does not appear upon the face of the deed whether or not two hundred and fifty feet runs to the line dividing the northwest, southwest and southwest, southwest, 23; but, when extrinsic proof is applied, then two tracts of land appear, which will answer the description in the deed. Hardy v. Mathews, 38 Mo. 121. And respondent should have applied to a court of equity to reform the deed. Jennings v. Briezeadine, 44 Mo. 335. (3) The evidence is clear and conclusive that defendant sold, and the Coopers bought to line dividing the northwest, southwest and southwest, southwest, 23, and the court should make the deed speak the language of the contract. Corrigan v. Linney, 100 Mo. 276; Reed v. Canal Co., 8 How. (U.S.) 277. (4) Appellant cannot invoke the statute of limitations. Michel v. Lensey, 69 Mo. 442; Revised Statutes, secs. 6764, 6768. The statute began to run only from the wrongful ejectment of respondent by appellant under the fraudulent judgment. Dunn v. Miller, 96 Mo. 324.
This is an action to reform the description in a deed executed by the defendant, Henry J. Deal, dated October 22, 1875, in which he conveyed to James A. and Andrew F. Cooper a tract of land in Stoddard county by the following description:
"Commencing at a stake fifty feet south of the center of the line of the Cairo, Arkansas & Texas railroad where said railroad crosses the section line between sections 22 and 23 on the west line of the northwest quarter of southwest quarter of said section 23, thence south two hundred and fifty feet, more or less, with the section line to a stake, thence east, with the line dividing the northwest quarter and the southwest quarter of the southwest quarter of said section 23, six hundred and sixty feet, more or less, to the middle of the northwest quarter of the southwest quarter of said section 23 to a stake, thence north to the south line of the right of way of said Cairo, Arkansas & Texas railroad, thence in a southwesterly direction along the right of way line aforesaid to the place of beginning, being in township 25 north, of range 10 east."
Under this deed the plaintiff was in the actual possession of a tract of about ten acres of land contained within the lines A B C D A on the following diagram:
[SEE DIAGRAM IN ORIGINAL]
In January, 1883, defendant commenced an action in ejectment against him, which came to this court on appeal from a judgment in favor of Deal for so much of said ten acres as is contained within the lines E B C F E which judgment was affirmed by this court at its October term, 1887. 94 Mo. 62, 6 S.W. 707.
The line B C in the diagram is the south line of the northwest quarter of the southwest quarter, section 23, i. e., "the line dividing the northwest quarter and the southwest quarter of section 23."
In the ejectment suit the plea was a general denial, and, in affirming the judgment of the circuit court, Black, J., speaking for the court said:
The parallel line called for in the second call under this construction of the deed is the line E F on the diagram drawn from a point two...
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