Fancher v. Prock

• Decision Date: 12 November 1935
• Parties: Belle Fancher, Administratrix of the Estate of C. E. Fancher, Appellant, v. J. L. Prock, and Lula A. Prock
• Court: Missouri Supreme Court

88 S.W.2d 179

337 Mo. 1119

Belle Fancher, Administratrix of the Estate of C. E. Fancher, Appellant, v. J. L. Prock, and Lula A. Prock

Supreme Court of Missouri

November 12, 1935

Appeal from Miller Circuit Court; Hon. Nike G. Sevier Judge.

Reversed and remanded (with directions).

Stillwell & Fendorf and C. D. Snodgrass for appellant.

(1) The first and primary rule in the construction of deeds and contracts is to ascertain, if possible, the true intention of the parties. Pierce v. St. L. Union Trust Co., 311 Mo. 286, 278 S.W. 405; Eckle v. Ryland, 256 Mo. 440 165 S.W. 1035. (2) One of the cardinal rules of construction is to gather the intention from the four corners of the instrument and give full force and effect to each and every part of it, when it is possible to do so. Dickerson v Dickerson, 211 Mo. 496, 110 S.W. 700; Buxton v. Kroeger, 219 Mo. 245, 117 S.W. 1147; Eckle v. Ryland, 256 Mo. 441; Triplett v. Triplett, 332 Mo. 873, 60 S.W.2d 15. (3) When one deed makes reference to another deed, the instrument to which reference is thus made becomes thereby part and parcel of the former instrument. Agan v. Shannon, 103 Mo. 661, 15 S.W. 757; Allen v. DeGroodt, 105 Mo. 451; Waldermeyer v. Loebig, 222 Mo. 552, 121 S.W. 75; Tillman v. Carthage, 297 Mo. 89, 247 S.W. 995. (4) Contemporaneous instruments relating to the same transaction should be read together. Smith v. Smith, 289 Mo. 419, 233 S.W. 186; White v. Reading, 203 Mo. 360, 239 S.W. 93; Engelhardt v. Gravens, 281 S.W. 718. (5) Words in a deed stating the estimated quantity or area of the land are part of its description and must be so considered in fixing the identity of the tract conveyed. Korneman v. Davis, 281 Mo. 234, 219 S.W. 904; Davis v. Hess, 103 Mo. 31, 15 S.W. 324; Beheret v. Myers, 240 Mo. 58, 144 S.W. 824; Prior v. Scott, 87 Mo. 303. (6) Where a part of a description in a deed is repugnant to or inconsistent with the other parts, if sufficient remain from which the intention of the parties can be ascertained and identified, that part which is repugnant may be rejected altogether. Presnell v. Headley, 141 Mo. 187, 43 S.W. 378; Johnson v. Bowlware, 149 Mo. 456, 51 S.W. 109; Sawyers & Austin Lbr. Co. v. Clark, 172 Mo. 593, 73 S.W. 137. (7) Whenever a deed contains two inconsistent descriptions, that one which the whole instrument shows best expresses the intention of the parties must prevail. Whitaker v. Whitaker, 175 Mo. 1, 74 S.W. 1029.

H. M. Atwell and Irwin & Bushman for respondents.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action to try and determine title to 940 acres of land in Miller County, with which is joined a separate count in ejectment. Plaintiff claimed title in fee simple and also the right to possession. Defendants' answer as to both counts was a general denial. The court, sitting as a jury, found that plaintiff was the owner of and entitled to the possession of 580 acres of the land, and that defendant was the owner of and entitled to 360 acres thereof. Judgment was rendered accordingly and plaintiff has appealed therefrom.

It was shown that on November 2, 1921, Jacob J. Falter and wife, by warranty deed, recorded in Book 33, page 228, of the records of Miller County, conveyed to A. C. Dauchy 1160 acres of land in Miller County, described in said deed as follows:

"All of the South half of the Southwest quarter and the Northwest quarter of the Southwest quarter, and the Southwest quarter of the Northwest quarter of Section No. Twenty-eight (28) also the South half, and the Southwest quarter of the Northwest quarter of Section No. Twenty-nine (29) also the Southeast quarter of the Northeast quarter of Section No. Thirty (30) also the North half and the Southeast quarter of Section No. Thirty-two (32), and the West half of the Southwest quarter and the Northeast quarter of the Northwest quarter of Section No. Thirty-three (33) and all in Township No. forty (40) N. of Range No. Thirteen (13) West and containing in the aggregate 1160 acres according to the United States Government Survey."

It was shown that, on December 8, 1916, A. C. Dauchy and wife, by warranty deed recorded in Book 38, page 402, of the records of Miller County, conveyed to Alamo National Bank, of San Antonio, Texas, the same land by exactly the same description, after which was set out the following recitals:

"Being the same land conveyed to A. C. Dauchy by Jacob P. Falter and his wife Mary Falter, as evidenced by deed recorded in Miller County, page 228, Deed Book 33, to which reference is hereby made for full and complete description."

It was shown that defendant bought the land from the Alamo National Bank, and that on February 11, 1918, the bank, by warranty deed recorded in Book 41, page 195, of the records of Miller County, conveyed to defendant the same land by exactly the same description as was contained in both of the warranty deeds hereinabove referred to, after which was also set out the following recitals:

"Being the same land conveyed to A. C. Dauchy by Jacob P. Falter and his wife Mary Falter, as evidenced by deed recorded in Miller County, page 228, Deed Book 33, to which reference is hereby made for full and complete description; and being the same land thereafter conveyed by A. C. Dauchy joined by his wife, Ophelia C. Dauchy, to said Alamo National Bank by deed recorded in Book 38, at page 402, of the records of said Miller County, to which said reference is also made. . . .

"It is expressly agreed and declared that the vendor's lien is hereby reserved to secure the due payment of said purchase money note hereinabove described ($ 8,000 described where the deed stated the consideration), together with all interest thereon and incidents thereto, all in accordance with its face, tenor and effect, after which this deed shall become absolute; and as additional and cumulative security for the punctual payment of said sums the said J. L. Prock has executed, acknowledged and delivered to Clinton G. Brown, Trustee, a certain deed of trust of even date herewith conveying and mortgaging, with power of sale, said property above described."

The mortgage referred to in this deed from the bank to defendant was executed in the regular form of a Missouri deed of trust by defendant and wife and was recorded after and on the same day that the deed from the bank to defendant was recorded. This deed of trust was described, as follows:

"The south half of the Southwest quarter and the Northwest quarter of the Southwest quarter, and the Southwest quarter of the Northwest quarter of Section No. twenty-eight (28), also all of the South half and the Southwest quarter of the Northwest quarter of Section No. twenty-nine (29) also the Southeast quarter of the Northeast quarter of Section thirty (30) also the North half of the Southeast quarter of Section No. thirty-two (32) and the West half of the Southwest quarter and the Northeast quarter of the Northwest quarter of Section No. thirty-three (33), all in township (40) of range (13) and containing in the aggregate 1160 acres according to Government Survey, being the same land conveyed to A. C. Dauchy by Jacob P. Falter and his wife, Mary Falter, as evidenced by deed recorded in Miller County, page 228, Deed Book 33 to which reference is hereby made for full and complete description; and being the same land thereafter conveyed by A. C. Dauchy, joined by his wife, Ophelia C. Dauchy, to said Alamo National Bank, by deed recorded in Book 38, at page 402, of the records of said Miller County, to which reference is also made."

By the use of the word "of" instead of the word "and" in the description that part of the land in Section 32, the trust deed specifically describes only eighty acres of land in Section 32, while the warranty deeds all described four hundred and eighty acres in this section. This trust deed, described the note secured, which contained the following recital:

"This note is secured by vendor's lien and deed of trust on 1160 acres of land in Miller county, Missouri, conveyed by deed of this date from the payee hereof to the maker hereof. . . ."

After describing the note, the trust deed stated further:

"Said note being also secured by the vendor's lien reserved in the deed of even date herewith whereby said land is conveyed, subject to said vendor's lien and this deed of trust by said Alamo National Bank to said J. L. Prock, this deed of trust is hereby declared to be cumulative and additional to said vendor's lien and shall neither affect nor be affected by the same."

It was further shown that plaintiff was the purchaser at foreclosure sale under this deed of trust and was the grantee in the deed, executed by the sheriff of Miller County as substitute trustee, conveying title thereunder. The foreclosure deed was in regular form, contained the usual recitals as to default, request to sell, advertisement and sale, and was recorded in Book 64, page 350, of the records of Miller County. It contained exactly the same description of the land as that stated in the deed of trust, including the references to the prior deeds recorded in Books 33 and 38 of the records of Miller County, but excluded 40 acres in Section Twenty-eight, 120 acres in Section Thirty-three, and 60 acres in Section Thirty-two, which it recited had been previously sold and which had been released from the mortgage. This reduced the original tract to the 940 acres in controversy. The notice of foreclosure described the land the same as did the foreclosure deed.

It was admitted that "the official survey returned to the United States General Land Office by the Surveyor General shows that Sections 28, 29, 32 and 33, Township 40, North, of Range 13, West of the Fifth Principal Meridian, are normal sect...