Epperson v. Epperson

• Citation: 61 S.W. 853,161 Mo. 577
• Parties: EPPERSON v. EPPERSON et al.
• Decision Date: 29 March 1901
• Court: United States State Supreme Court of Missouri

61 S.W. 853

161 Mo. 577

EPPERSON v. EPPERSON et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1901.

REFORMATION OF INSTRUMENTS — DEEDS — DESCRIPTION — MISTAKE — BAR — LIMITATIONS OF ACTIONS — EJECTMENT.

1. Defendant's father, in 1870, conveyed land to him by a deed describing five tracts in a certain section, two of which were described as the "southeast quarter of the southwest quarter" thereof; the whole containing 189.38 acres. The grantor was the owner of five tracts of land constituting one farm, and known as the "Home Place," one of which was the northeast quarter of the southwest quarter, which was not described in the conveyance. Defendant entered into and remained in possession of the five tracts until he sold same, about 1896, claiming and using them as his own; his father and mother living with him until their death, always recognizing the whole tract as his, the father stating that he had deeded it to defendant. Held, in ejectment, in 1896, for the northeast quarter of the southwest quarter, that such tract was omitted from the deed by mistake, and defendant was entitled to have it corrected to include such tract.

2. Defendant and his assigns having been in continuous, peaceable, and uninterrupted possession of premises, which, by mistake, were not all included in the description in the deed, for more than 26 years, without ever having their title or possession questioned until ejectment brought for the land omitted, and until which time it had never become necessary for them to take affirmative action, limitations are not a bar to a correction of the deed in the action of ejectment.

Appeal from circuit court, McDonald county; J. C. Lamson, Judge.

Ejectment by Martin Epperson against George W. Epperson and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

John B. Christensen, for appellant. Trimble & Braley and W. R. Thurmond, for respondents.

BRACE, P. J.

This is an action in ejectment by the plaintiff, a son and one of the heirs at law of Aphrey Epperson, deceased, who sues to recover an undivided fifth of the following real estate, situate in McDonald county, to wit, the N. E. ¼ of the S. W. ¼ of section 13, township 22, range 13. The defendants claim title under a deed in which it is alleged there was a mistake in the description of this 40-acre tract, which they ask to have corrected. The finding and decree was for the defendants, and the plaintiff appeals.

On the 1st day of January, 1870, the said Aphrey Epperson, by his warranty deed of that date, duly executed and acknowledged, in which his wife, Elizabeth Epperson, joined, relinquishing her dower, conveyed to his son the defendant George W. Epperson the following described tracts or parcels of land, situate in McDonald county, in the state of Missouri, that is to say: "The southeast quarter of the southwest fractional quarter of section thirteen (13), township twenty-two (22), range thirty-three (33), containing thirty-nine and 38-100 acres; also the southwest qr. of the southeast quarter of section thirteen (13), township twenty-two (22), range thirty-three (33), containing forty acres; also the southeast quarter...