Ellis v. Springfield-South-Western Railway Co.

• Decision Date: 31 March 1908
• Citation: 109 S.W. 74,130 Mo.App. 221
• Parties: ELLIS, Respondent, v. SPRINGFIELD-SOUTH-WESTERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

109 S.W. 74

130 Mo.App. 221

ELLIS, Respondent, v. SPRINGFIELD-SOUTH-WESTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 31, 1908

Appeal from Stone Circuit Court.--Hon. John T. Moore, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Martin L. Clardy and Edw. J. White for appellant.

The court should have sustained the defendant's demurrer to the petition of the plaintiff. The petition showed, on its face, that the deed in which the condition sued on was incorporated, was the joint deed of Alfred Ellis and Oma Ellis and that one only of the two covenantees complained of the breach. 15 Enc. Pl. and Pr., pp. 529, 530; Rainey v Smizer, 28 Mo. 310; Thieman v. Goodnight, 17 Mo.App. 430; Clark v. Cable, 21 Mo. 223; Ryan v Riddle, 78 Mo. 521; Culver v. Smith, 82 Mo.App 390; Dewey v. Carey, 60 Mo. 224; Ohnsorg v. Turner, 33 Mo.App. 487; McLaren v. Wilhelm, 50 Mo.App. 658; Slaughter v. Davenport, 151 Mo. 26; Parks v. Richardson, 35 Mo.App. 197; Lemon v. Wheeler, 96 Mo.App. 651; 1 Parsons on Con. (7 Ed.), 13; Seymour v. Railroad, 106 U.S. 320, 27 L.Ed. 103; Butler v. Boynton, 117 Mo.App. 465.

McNatt & McNatt and G. W. Thornsberry for respondent.

Even though it had been a joint obligation from the appellant to the respondent and his wife, yet if their agreement was to do different things for each of them, then their rights of action would be several, and not jointly. Bliss on Code Pleading (3d Ed.), sec. 64; McConnell v. Braymer, 64 Mo. 461; Boal v. Gas Co., 23 Pa. Sup. 339.

OPINION

BLAND, P. J.

--Plaintiff owns a tract of land situated in Stone county, Missouri. On August 24, 1905, he and his wife, Oma Ellis, signed and acknowledged the following deed (omitting caption and signatures):

"This indenture made on the twenty-fourth day of August, A. D. one thousand nine hundred and five, by and between Alfred Ellis and Oma Ellis, his wife, of Stone county, Missouri, party of the first part, and the Springfield, Southwestern Railway Company, a corporation organized under the laws of the State of Missouri, party of the second part:

"Witnesseth: That the said party of the first part in consideration of the sum of five hundred dollars ($ 500), the receipt whereof is hereby acknowledged and the building, maintaining and operating of a railroad by the said party of the second part, its successors and assigns, upon the strip of land hereinafter described, do, by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part, its successors and assigns, all the piece and parcel of land being a strip of land, being a strip on each side of the center line of the railroad as now located over, through and across the lands of Alfred Ellis, situate, lying and being in the county of Stone, State of Missouri, in section No. 6, township 25, range 23 and 31, township No. 26, range No. 23, beginning at a point on the property line between Alfred Ellis and Thomas Eaton, fifty feet to the westward of the center line of the railroad as now located thence northward fifty feet, from and parallel to the center line through section 6, township 26 north, range 23 west, and through the southwest one-fourth of the southeast one-fourth of section 31, township 26 north, range twenty-three west, to the line of William Spears, thence eastward along said property line to the land line of Luther Hilton, thence southward along the property line between Luther Hilton and Alfred Ellis to the north line of section 6, thence westward along said line to a point fifty feet from the center line of the railroad as now located, thence southward fifty feet from parallel to said center line to the land of Thomas Eaton, thence to the point of beginning, the railroad company to construct an underneath cattle pass in the first draw south of the north section line of section 6, and to be exempt from all further damage, such piece or parcel of land hereby conveyed having through east one-half, northwest one-fourth, through northwest one-fourth northeast one-fourth, section 6, and forty rods, more or less, into the southwest one-fourth, southeast one-fourth section 31, township 26, north, range 23 west, Stone county, Missouri, as it may pass through the lands and premises of the grantors herein, and the party of the first part agrees further that the railway company aforesaid, through its agents, employees or servants, may be allowed to encroach upon the adjoining lands, outside of the limit above mentioned, to which the party of the first part have title, for the purpose of completing or trimming its cuts or fills or for any purpose of change of channel, so long as the railway company aforesaid may wish to maintain and operate its said railroad; it being expressly understood and agreed, however, that the title acquired by the said party of the second part shall be confined to the strip of land first above mentioned.

"To have and to hold the premises aforesaid with all and singular the right, privileges, appurtenances and immunities thereto belonging or in any wise appertaining unto the said party of the...