Fischer v. Dent

• Decision Date: 02 June 1914
• Docket Number: No. 16510.,16510.
• Citation: 167 S.W. 977,259 Mo. 86
• Parties: FISCHER v. DENT.
• Court: Missouri Supreme Court

167 S.W. 977

259 Mo. 86

FISCHER v. DENT.

No. 16510.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. REFORMATION OF INSTRUMENTS (§ 16)— RIGHT OF ACTION AND DEFENSES—GROUNDS —MISTAKE.

Where, after correspondence looking to the sale of a store building adjoining another building owned by the vendor, a deed was made which by mistake included 2¼ feet of the ground covered by the building retained, the undoubted intention being to merely include the ground covered by the one building, the deed and a subsequent deed and mortgage by the purchasers containing the same description were properly reformed.

2. REFORMATION OF INSTRUMENTS (§ 44)— PROCEEDINGS AND RELIEF—EVIDENCE.

Where a deed to a store building included 2¼ feet of the ground covered by an adjoining building retained by the vendor, the unquestioned possession by the respective parties to the line marked by the buildings measured their claim, and was evidence of their intention in a suit to reform the deed.

3. REFORMATION OF INSTRUMENTS (§ 28)— RIGHT OF ACTION AND DEFENSES—PERSONS AS TO WHOM INSTRUMENTS MAY BE REFORMED.

A purchaser from parties whose deed included by mistake 2¼ feet of an adjoining building retained by the original vendor stood in no better position in a suit to reform the deeds than his immediate vendors, as he saw their possession as well as the possession of those claiming adversely to the description, and was bound to take notice of its nature, origin, and extent.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Suit by Emily M. Fischer against E. F. Dent and others. Judgment for plaintiff, and the defendant named appeals. Affirmed.

J. J. Cope, of Salem, for appellant. Wm. P. Elmer, of Salem, for respondent.

BROWN, C.

This is a suit by the plaintiff against E. F. Dent, Mary A. Judson, Nathaniel D. Hobson, and Earl A. Seay, defendants, to reform a deed made by the plaintiff April 27, 1907, to Hobson and Seay purporting to convey to them all the portion of lots 2 and 3 of block 15 west side of the creek in the city of Salem, Dent county, Mo., described as follows, to wit:

"Commencing thirty-five feet east of the northwest corner of said lot two, thence east twenty-five and a half feet, thence south one hundred and sixty-five feet, to the south line of lot three, thence west twenty-five and a half feet, thence north one hundred and sixty-five feet, to the place of beginning."

It will be observed that this description covers the east 25½ feet of the west 60½ feet of said lots 2 and 3 in block 15. It fronts north on Fourth street and south on Third street. The plaintiff contends, and so states in substance in her petition, that this description was a mistake and that the deed was intended by both parties to convey, and should have conveyed, the east 23¼ feet of said 60½ feet.

The plaintiff acquired the title to the 60½ feet by devise from her late husband, Louis Fischer, who died about the year 1897. He acquired the 25½ feet described in this deed from E. L. Dye in 1880, and erected a brick building on the north end of it flush with the east line, and 23¼ feet wide and extending south from Fourth street on which it fronted, about 70 feet; thus leaving a strip west of the building 2¼ feet wide. In 1886 he acquired the 35 feet adjoining it on the west and extending to the west line of lots 2 and 3. He then erected on that part of his land west of the first building another building afterward called Fischer Opera House, which extended 113 feet south from the south line of Fourth street and occupied the entire 37½ feet west of the first building constructed, which was commonly known as Fischer's little store. The walls of these two buildings were independent, although in actual contact, for a distance of 60 feet south from Fourth street. Thence to the south end of the little store, the wall of the Opera House building was used as a common wall. The little store lot was vacant south of the south end of the building, except that about 20 feet of the south end was occupied by a warehouse of the same width as the store. At the time of the sale to Hobson and Seay, the store purchased by them was occupied by Murray, Bryson & Co., who attorned to the purchasers and remained in possession; while the Opera House building was occupied by one Selby, who kept the store which occupied the first story, and ran...