Flaspohler v. Hoffman, WD33612

• Decision Date: 05 April 1983
• Docket Number: No. WD33612,WD33612
• Parties: Shirley FLASPOHLER, Plaintiff-Respondent, v. Kenneth S. HOFFMAN and Mercedes E. Hoffman, and Tri-County Trust Company, Defendants-Appellants, and Kenneth D. Funk and Helen L. Funk, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 703

652 S.W.2d 703

Shirley FLASPOHLER, Plaintiff-Respondent, v. Kenneth S. HOFFMAN and Mercedes E. Hoffman, and Tri-County

Trust Company, Defendants-Appellants,

and

Kenneth D. Funk and Helen L. Funk, Defendants-Respondents.

No. WD33612.

Missouri Court of Appeals,

Western District.

April 5, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

May 31, 1983.

Application to Transfer Denied

June 30, 1983.

William J. Daily, Glasgow, for defendants-appellants.

Gary G. Sprick, Fayette, for plaintiff-respondent Shirley L. Flaspohler.

Wm. Patrick Cronan, Cronan, Robinson, Lampton & Faber, Fayette, for defendants-respondents Funk.

Before DIXON, P.J., and KENNEDY and LOWENSTEIN, JJ.

DIXON, Presiding Judge.

This appeal is from a judgment in a court-tried case and involves issues of reformation and the effect of reformation on subsequent grantees and mortgagees.

For an understanding of the issues on appeal, a detailed statement of the pleading and judgment is of first importance.

Plaintiff's Count I

Plaintiff Flaspohler sought reformation of a deed description from Ruth Funk to plaintiff and her deceased husband. The claim was asserted against defendants Kenneth D. Funk and his wife in Kenneth D. Funk's capacity as the heir of Ruth Funk. Plaintiff also alleged that Kenneth D. Funk and his wife had conveyed to defendants Kenneth S. Hoffman and his wife a portion of the land included in the reformed description and that defendants Hoffman had given a mortgage to defendant Tri-County Trust including a portion of the reformed description. The trial court reformed the deed description. Defendants Hoffman and Tri-County Trust have appealed. The issues raised are the sufficiency of the evidence to support reformation and the effect of reformation upon the appealing defendants, Tri-County Trust and Hoffmans. Funks, the grantors, have not appealed.

Plaintiff's Count II

Plaintiff sought a decree of quiet title to the reformed description against all the defendants. The trial court so ordered. Defendants Hoffman and Tri-County Trust have appealed. The effect of this judgment is to divest Hoffmans of any title and the Tri-County Trust Company of any lien on a portion of the land their deed and mortgage describe.

Plaintiff's Count III

Plaintiff pleaded alternatively that if no relief were granted under Counts I and II she was entitled to a judgment for the value of improvements made on the disputed tract pursuant to § 524.160 RSMo 1978. The court entered judgment against plaintiff, and no appeal was taken.

Cross-Claim of Defendants Hoffman

Defendants Hoffman cross-claimed against defendants Funk on the warranty of their deed from Funks. The trial court entered judgment for the defendants Funk. Hoffman has appealed. The issue is the correctness of the trial court judgment denying relief to Hoffmans on the warranties of the deed because, as the trial court found, Hoffmans took with notice of the defect in title. The sole issue on the cross-claim is whether notice of title defect bars an action on the warranties.

The focus of the entire appeal is thus upon the sufficiency of the evidence to support the reformation and the status of defendants Tri-County Trust and Hoffmans as purchasers without notice of plaintiff's claim. If the reformation was improper, the quiet title judgment cannot stand. For comprehension of the dispute and the evidence offered, the physical description and location of the properties must be understood. To assist in that understanding, a replication of a plat submitted to the court with tract numbers superimposed follows. Reference to that plat will aid in comprehension of the conveyances without resort to the cumbersome descriptions.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Tracts 1 and 2

The E 1/2 of the NE 1/4 of Sec. 22, Twp. 51, Range 16, W. of the 5th P.M., less and except 6.25 A., in the SW corner thereof, more particularly described as follows, to-wit:

Beginning at the SW corner of the said E 1/2 of the NE 1/4, run thence N. 12.14 chs. to the road, thence along the W. side of said road, as follows, to-wit: S. 75 degrees E. 1.50 chs., S. 34 1/2 degrees E. 5.40 chs., to the S. line of the said E 1/2 of NE 1/4 at a point 6.70 chs. E. of the point of beginning, run thence W. 6.70 chs. to the point of beginning, containing 74.75 A.

Tracts 3 and 4

Part of the SW 1/4 of NW 1/4 of Sec. 23, Twp. 51, Range 16, W. of 5th P.M., described as follows, to-wit:

Beginning at the SW corner of the said SW 1/4 of NW 1/4, run thence E. 5.37 chs. to the middle of the County road, run thence along and with the said road as follows: N. 4.84 chs., N. 53 degrees W. 4.50 chs., N. 4 degrees W. 8 chs., N. 19 degrees W. 4.60 chs. to the intersection thereof with the W. line of the said SW 1.4 of NW 1/4 at a point 19.80 chs. N. of the point of beginning, run thence S. 19.80 chs. to the point of beginning, containing 5.75 A., containing in all 80.50 A., more or less, and subject to R/W.

Referring to this plat, Ruth Funk and her husband acquired title to all four tracts around 1941. Tracts 1 and 2 are all of the East Half of the Northeast Quarter of Section 22, Township 51, Range 16, except approximately six acres in the Southwest corner of the East Half. That excepted tract is not here involved. Tracts 3 and 4 are part of the West Half of Northwest Quarter of Section 23, Township 51, Range 16, and represent 5.75 acres described by metes and bounds. Ruth Funk's husband died several years before the conveyances in question. Ruth Funk conveyed to Charles Flaspohler and Shirley Flaspohler tracts 3 and 4 by warranty deed in June 1976. Ruth Funk died December 3, 1977; Charles Flaspohler died December 20, 1977.

The deed was drafted by an abstractor who characterized the transaction as one "between neighbors." He prepared the description by reference to the original conveyance to Funks in 1941, which by separate descriptions conveyed two tracts. He inserted the description of the land in the Northwest Quarter Section 23, Township 51, Range 16, the 5.75 acres. No plats or sketches were made, and none were referred to by the scrivener. Ruth Funk's house was on the tract which was conveyed. However, the draftsman had no recollection that the land on which the house was situated was to be included.

Immediately after the conveyance, Flaspohlers occupied tracts 2 and 4 and brush hogged the ground and planted corn, which was harvested in the fall of 1976. In the summer after the sale, a man named Richey did bulldozing work on tracts 2 and 4. The line fence on the south of tracts 2 and 4, which separated the disputed tract and the property of a man named Frank Knapp, was replaced in late 1976, with Charles Flaspohler and Frank Knapp sharing the labor and costs. After Ruth Funk died, Shirley Flaspohler did other bulldozing work on the property in the summer of 1978.

The Flaspohlers did not take possession of tract 3 and, in fact, Ruth Funk's home, in which she continued to live, was on that tract. Don Brundage was Ruth Funk's tenant and did not farm tracts 2 and 4 while Ruth Funk was still alive. Flaspohler was at that time farming tracts 2 and 4. Mary Hoffman, mother of the defendant Hoffman, lived in the area and knew of this activity. Ruth Funk told Brundage she had sold the land south of the road to Flaspohlers. Several other neighbors testified that Ruth Funk told them that she had sold the Flaspohlers the land "across the road" or "south of the road." The road, which is shown on the plat, was a traveled road and even the defendant Hoffman admits that the improvements on the ground south of the road were obvious.

In December 1980 defendant Kenneth Funk and his wife conveyed to defendants Hoffman land that by legal description encompassed tracts 1 and 2. The contract reflects that Kenneth Funk retained the crop to be harvested by Brundage in 1981. Kenneth Funk did not testify at the trial and, although a defendant, has not appealed from that portion of the judgment adverse to him.

Kenneth Hoffman had "his fingers on" the Funk farm for several years. He drove past the land Flaspohlers claim on several occasions. He hunted on tracts 1 and 2 and the Flaspohlers' other land. Flaspohlers say he asked permission to hunt on tracts 1 and 2. Hoffman admits telephoning for permission, but says he only sought permission to hunt on the Flaspohler land south of tracts 1 and 2. Hoffman admits he was aware of the improvements on tracts 1 and 2 and was aware of a piece of machinery belonging to Flaspohlers located on tract 2. He was aware of the wheat crop growing on tract 2 at the time he purchased. He was aware of the relatively new fence on the south. There was an observable difference in the land's condition north and south of the road. The evening after he purchased the land he called Don Brundage. Brundage says Hoffman was then aware of and mentioned a title problem as to the land south of the road. Hoffman says he called and told Brundage about the sale. He claims that he first became aware of a title problem when Brundage told him the Flaspohler son had the wheat south of the road.

Flaspohlers went to the Department of Agriculture July 27, 1977, and added the acreage in tracts 2 and 4 to the other Flaspohler land. Ruth Funk signed a form agreeing to the transfer of the acreage allotment to reflect a sale of tracts 2 and 4 in the amount of twelve acres.

Kenneth Funk, son and only heir of Ruth Funk, applied for letters of administration December 20, 1977. The appraisers for the estate went to the farm with W.B. Miller, a brother-in-law of Ruth Funk. W.B. Miller, who testified Ruth Funk had told him she had sold the land south of the road, pointed out to the appraisers the boundaries north of the road. One of the appraisers testified that they did not include in the appraisal any of the land south of the road. The legal description in the inventory, however, included tracts 1 and 2. The...