Davis v. Alexander

• Decision Date: 17 November 1915
• Docket Number: No. 17135.,17135.
• Citation: 183 S.W. 563
• Parties: DAVIS v. ALEXANDER.
• Court: Missouri Supreme Court

183 S.W. 563

DAVIS v. ALEXANDER.

No. 17135.

Supreme Court of Missouri.

November 17, 1915.

On Motion for Rehearing, March 1, 1916.

In Banc. Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Nathan G. M. Davis against Mary M. Alexander. From an order granting

a new trial, defendant appeals. Reversed and remanded, with directions.

The following is the plat contained in the record:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The following is the plat contained in respondent's brief:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff and defendant were adjoining landowners in the city of Columbia, Boone county, Mo. Respondent brought an action in above court against appellant to quiet title under section 2535, R. S. 1909. The petition is in the usual form, and alleges that plaintiff is the owner in fee simple of two triangular and one rectangular portions of lot 1 in Samuel's Second addition to the city of Columbia aforesaid, and that defendant claims some title, estate, or interest in the land aforesaid, the nature and character of which is unknown to plaintiff, which said claim is adverse and prejudicial to respondent. Plaintiff prayed the court to ascertain and determine the estate, title, and interest of plaintiff and defendant respectively in and to the real estate aforesaid, and to define and adjudge the interests, title, and estate of said parties according to the statute in such cases made and provided, etc. The answer is a general denial, except in respect to the averments as to defendant's claims and title to said property. Defendant also asserts in said answer that she has full and complete title to the premises described in petition and is entitled to the possession thereof.

The case was tried by the court with the assistance of a jury. The jurors were called by the court to try the issue as to whether or not plaintiff and his grantor or predecessors in title had been in the adverse possession of the land described in petition for ten consecutive years or more prior to the institution of this suit. The jury found that plaintiff and his predecessors in title had not been in adverse possession of the property described in petition for ten consecutive years or more prior to the institution of this suit, and on this issue found in favor of defendant. The court, after setting out in the record the verdict of the jury, proceeded therein as follows:

"It is therefore ordered and adjudged by the court that the plaintiff take nothing by his writ, and that this defendant go hence without day, and have and recover of and from the plaintiff all costs of this cause, and that execution issue therefor."

Plaintiff filed a motion for a new trial in due time, and the court sustained the same, without specifying of record the ground upon which it was sustained. Defendant duly appealed to this court from the order granting plaintiff a new trial, and with her record before us in proper form we are called upon to determine whether the trial court committed error in granting plaintiff a new trial.

Plaintiff's Record Title.

The property in dispute is a part of lot No. 1 in Samuel's Second addition to the town of Columbia, Mo. The plaintiff introduced the following records tending to establish a record title:

(1) The plat of Samuel's Second addition, dated October 27, 1882, recorded in Book 58 at page 482 of the Deed Records of Boone county, Mo. It was admitted that John M. Samuel, maker of said plat, was the owner of all of the land in dispute, and his grantee, W. W. Batterton, is the common source of title. Said plat shows lot No. 1 as fronting on Locust street.

(2) A deed from John M. Samuel and wife to W. W. Batterton, dated November 8, 1883, conveying to said Batterton lot No. 1 in said addition.

(3) A deed from W. W. Batterton and wife to Benjamin Cave, dated November 30, 1883, and a deed of correction from said Batterton, dated March 14, 1893, conveying to said Benjamin Cave the east part of lot No. 1 in Samuel's Second addition by the following description:

"The east part of lot No. 1 in Samuel's Second addition to the town of Columbia, commencing at the northeast corner of said lot No. 1; thence south 132 feet; thence west 23 feet; thence north 59 feet; thence west 27 feet; thence north 73 feet; thence east 50 feet to the place of beginning."

(4) The last will of Benjamin Cave, deceased, together with the probate thereof, dated February 19, 1884, and the order appointing W. J. Babb administrator with the will annexed of the estate of said Benjamin Cave, deceased. Said will directs that the testator's real estate be sold at public sale and divided among his named children.

(5) A deed dated September 7, 1885, from said administrator with the will annexed of Benjamin Cave, deceased, to Margaret Cave, conveying said tract by the same description as in the deed to said Benjamin Cave.

(6) The last will of Margaret Cave, deceased, together with the probate thereof, dated December 7, 1886. Said will devises said real estate in fee simple to the stepson of the testatrix, Marion Cave.

(7) A deed from Marion Cave, a widower, dated March 14, 1893, to E. F. Ammerman, conveying said tract by the following description:

"The east part of lot one (1) in Samuel's Second addition to Columbia, Mo., as shown in the plat of said addition on file in the recorder's office for Boone county, Missouri, in Deed Book 58, p. 482. Said part herein conveyed being bounded as follows to wit: Beginning at the northeast corner of said lot; thence south 132 feet to the southeast corner of said lot on the north line of an alley; thence west with the north line of said alley 23 feet; thence north 59½ feet; thence west 27 feet; thence north 73 feet to the north line of said lot on the south line of Locust street; thence east with said line 50 feet to the beginning."

(8) A deed from E. F. Ammerman, a widower, dated August 22, 1910, to the plaintiff, Nathan G. M. Davis, conveying the same property by the same description as in said deed to E. F. Ammerman.

Defendant's Record Title.

The defendant's record title is shown by the following mesne conveyances from the common source of title, W. W. Batterton:

(1) A deed from W. W. Batterton and wife to George R. Jacobs, Jr., dated July 12, 1884, conveying the following tract of land:

"135 × 138 feet, a part of eleven (11) acre lot No. 25 bounded on the east by the land of John M. Samuel and on the south by the lot of Fred Schmidt, on the west by Hitt street, and on the north by Locust street; also the west part of lot No. 1 in Samuel's Second addition. All situated in the town of Columbia, Boone county, Missouri."

(2) A deed of trust from George R. Jacobs, Jr., and wife to James W. Schwabe, trustee for James D. Bowling, dated August 29, 1898, which deed of trust conveys the same tract of 135 × 138 feet as in the deed to said Jacobs, and also the following:

"Also the west part of lot No. one (1) in Samuel's Second addition to the town, now city, of Columbia being all that part of said lot not heretofore conveyed by W. W. Batterton to Benjamin Cave by deed dated November 30, 1883, and recorded in the recorder's office of Boone county, Missouri, in Deed Book 62 at page 89."

This deed of trust is not set out in full in appellant's abstract, but it is sufficient to say that the same was given to secure the payment of a promissory note, and contained the usual power of sale in the trustee in case of default in the payment of said note.

(3) A trustee's deed from James W. Schwabe, trustee, to Charles A. Jacobs, dated September 12, 1899, foreclosing the above-mentioned deed of trust after default, with the usual recitals, and conveying the same tracts by the same description as contained in the deed of trust.

(4) A warranty deed from Charles A. Jacobs, a single man, to Annie E. Jacobs, dated September 12, 1899, conveying the same tracts by the same description as above.

(5) A warranty deed from Annie E. Jacobs, a widow, to Mary M. Alexander, conveying the following tracts:

"A part of lot No. one (1) in Samuel's Second addition to the town of Columbia, Missouri, described as follows: Beginning at a point on the south line of Locust street 125 feet east of the intersection of the south line of Locust street with the east line of Hitt street in said town; * * * thence south 73 feet; thence east 6 feet; thence south 17.9 feet; thence east 14 feet; thence south 41.9 feet to the north line of an alley; thence east with the north line of said alley 42 feet, more or less, to the southwest corner of a tract of land conveyed by W. W. Batterton and wife to Benjamin Cave by deed recorded in Book 62, page 59, of the Records of said county; thence north with said Cave's line 59½ feet; thence west with said Cave's line 27 feet; thence north with said Cave's line 73 feet to the south line of Locust street; thence west with the south line of said Locust street 35 feet, more or less, to the point of beginning."

From these records it will be seen that lot No. 1 in Samuel's Second addition is laid out as abutting Locust street; the north line of said lot being on the south line of Locust street. The plaintiff offered in evidence the record of the order made by the board of aldermen of the city of Columbia, dated May 27, 1870, extending Locust street east to Baptist College avenue, in front of the property in controversy.

A plat of a survey of the tracts in controversy made by P. S. Quinn, surveyor of Boone county, on September 10, 1910, was identified and offered in evidence. Said surveyor was present at the trial, and was placed upon the stand by the plaintiff. From his testimony it appears that he found the true line of Locust street to be nine feet north of the south line of said street as actually located. He testified that he had been in the city of Columbia since 1871, and that the present location of said street is the same as it...