Ellis v. Springfield Southwestern Ry. Co.

• Decision Date: 31 March 1908
• Citation: Ellis v. Springfield Southwestern Ry. Co., 109 S.W. 74, 130 Mo. App. 221 (Mo. App. 1908)
• Parties: ELLIS v. SPRINGFIELD SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

109 S.W. 74

130 Mo. App. 221

ELLIS v. SPRINGFIELD SOUTHWESTERN RY. CO.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

COVENANTS—ACTIONS—NECESSARY PARTIES.

Where the wife of the owner of land joined in a conveyance for the purpose of conveying her inchoate right of dower or of homestead, she was a necessary party to an action on a covenant contained in the deed whereby the grantee bound itself to construct an underway cattle pass.

Appeal from Circuit Court, Stone County; Jno. T. Moore, Judge.

Action by Alfred Ellis against the Springfield Southwestern Railway Company for breach of a covenant contained in a grant of a right of way from plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Ed. J. White, for appellant. G. W. Thornberry, for respondent.

BLAND, P. J.

Plaintiff owns a tract of land situated in Stone county, Mo. 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 that 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, ranges 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 N., range 23 W., and through the S. W. ¼ of the S. E. ¼ of section 31, township 26 N., range 23 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 E. ½ N. W. ¼, through N. W. ¼ N. E. ¼ section 6, and 40 rods, more or less, into the S. W. ¼ S. E. ¼ section 31, township 26 N., range 23 W., 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, employés or servants, may be allowed to encroach upon the adjoining...