County of Bollinger v. McDowell

• Decision Date: 24 February 1890
• Citation: 99 Mo. 632,13 S.W. 100
• Parties: COUNTY OF BOLLINGER v. McDOWELL.
• Court: Missouri Supreme Court

13 S.W. 100

99 Mo. 632

COUNTY OF BOLLINGER v. McDOWELL.

Supreme Court of Missouri.

February 24, 1890.

MORTGAGES — DESCRIPTION.

A mortgage, after stating the county and state in which the land was situated, described it as "beginning on a Spanish oak," and then gave the courses and distances, as well as monuments, stating that the described area contained 242½ acres. It then excepted all of the described land lying west of a certain stream, and 7½ acres on the east, which excepted parts "were sold off by Henry Yount, Sr.," leaving 142½ acres remaining in the tract, all on the east side of the stream. Held, in ejectment between the original parties to the mortgage, that the mortgagee could introduce parol evidence that certain land in the county had long been known by the description contained in the mortgage; that the land had been conveyed, by persons in privity with the mortgagor, by the same description; and that the tract was also popularly known as "Henry Yount's Land," as well as deeds of the excepted parts executed by Henry Yount, Sr.

Error to circuit court, Bollinger county; JAMES D. FOX, Judge.

Moses Whybark, for plaintiff in error. W. K. Chandler, for defendant in error.

BARCLAY, J.

This is an action of ejectment, in which there was a judgment for defendant in the trial court, to reverse which plaintiff has brought this writ of error. Plaintiff's claim of title rests on a mortgage overdue, in which the land conveyed is thus described: "The following described lots, tracts, or parcels of land lying, being, and situated in the said county of Bollinger, and state of Missouri, to-wit: Beginning on a Spanish oak; thence south, nine degrees east, 35 chains, to a hickory; thence north, 81 degrees east, 63 chains, to a white oak; thence north 9 degrees west, 35 chains, to a stake; and thence south, 81 degrees west, 63 chains, to the beginning, — containing in all, of the above description, two hundred and forty-two acres and a half; except, however, all that portion of said tract of land which lies on the west side of Whitewater, a stream of water running through said tract as above described, and also seven acres more of said tract, lying on the east side of Whitewater, which said parts so excepted were sold off by Henry Yount, Senior, during his life-time, leaving one hundred and forty-two acres and a half remaining in said tract, and all lying on the east side of said Whitewater."

The circuit judge who tried the case ruled that this description was so vague and uncertain as to render the deed void, and excluded the parol evidence offered to elucidate it. This ruling is decisive of the case on the present record. The mortgage in question was made by several parties, including defendant, to secure payment of a school-fund bond, also executed by defendant and others to the county of Bollinger. Both are in the usual forms employed by counties in making loans of public school moneys.

It is to be noted at the very outset that this action is directly between the immediate parties to the conveyance, and what is said in the course...