Frazier v. Shantz Real Estate & Inv. Co.

• Decision Date: 20 December 1938
• Docket Number: 34619
• Citation: 123 S.W.2d 124,343 Mo. 861
• Parties: Adrian O. Frazier and Edith Irvine, Executors of the Will of George L. Frazier, v. Shantz Real Estate & Investment Company, a Corporation, Appellant
• Court: Missouri Supreme Court

123 S.W.2d 124

343 Mo. 861

Adrian O. Frazier and Edith Irvine, Executors of the Will of George L. Frazier, v. Shantz Real Estate & Investment Company, a Corporation, Appellant

No. 34619

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge;

Affirmed.

J L. Miller and Ernest E. Baker for appellant.

(1) It was the duty of the trial court to find the facts on all material issues presented to the court. The court failed to find the facts on all the material issues duly presented to the court, and such failure is grounds for reversal of the finding and judgment. McBride v. Mercantile Commerce Bank & Trust Co., 48 S.W.2d 922; Korneman v. Davis, 281 Mo. 234, 219 S.W. 904; Allison v. Dorton, 24 Mo 346; Sutter v. Streit, 21 Mo. 159; St. Louis Hospital Assn. v. Williams, 19 Mo. 612. (2) The conclusions of law and judgment must be supported by the finding of fact. Hamil v. Talbott, 72 Mo.App. 22; Sutter v. Streit, 21 Mo. 157. (3) There must be substantial evidence to support the finding of material facts by the court. Bates v. Bower, 17 Mo. 550; Fruin v. O'Malley, 241 Mo. 250. (4) Plaintiff is bound by the theory on which he tries his case in chief and cannot abandon that theory and prove his case on another and different theory on rebuttal. Laclede Land & Imp. Co. v. Goodno, 181 S.W. 413. (5) Defendant's actual possession of Lot 4, including the land in dispute, excluded defendant's constructive possession under color of title to the land in dispute. Herbst v. Merrifield, 133 Mo. 273; Cripsen v. Hannavan, 50 Mo. 545. (a) The deed to plaintiff covered land owned by the grantor and the land in dispute which was not owned by the grantor, and plaintiff's possession of the land not in dispute was not sufficient to extend constructive possession to the land in dispute under color of title. Keaton v. Hamilton, 264 Mo. 564; Hedges v. Pollard, 149 Mo. 227; Robinson v. Allison, 192 Mo. 370; 2 C. J. Sec. 772, sec. 184-B; White v. Burnley, 61 U.S. 886; 20 How. 251; Bailey v. Carleton, 12 N.H. 9; Gerhart v. Moore, 229 S.W. 876; Wheatley v. San Pedro L. A. & S. L. Ry. Co., 147 P. 139; Fed. Gas, Oil & Coal Co. v. Harmon, 71 S.W.2d 630; Round Mt. Lbr. Co. v. Bass, 191 S.W. 343; St. L., I. M. & S. Ry. v. Moore, 103 S.W. 1136.

Williams, Nelson & English, E. G. Curtis, Clifford Greve and Thomas B. Curtis for respondents.

(1) By the introduction of patents and deeds covering the land in question, and the proof of the payment of taxes on the property over a period of years, respondents made out a prima facie case in ejectment. Eatherton v. Henderson, 59 S.W.2d 623. (2) A government patent does not carry accretions where the boundary is not shown to be on a river, but is a definite line. 1 R. C. L. 230, sec. 3. (3) Any conveyance of land by metes and bounds does not carry accretions to that land formed prior to the date of the conveyance. 1 R. C. L. Per. Suppl., p. 60, sec. 11; Smith v. Public Schools, 30 Mo. 290.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This suit was instituted August 31, 1933, in the Circuit Court of St. Louis County by George L. Frazier as plaintiff against Shantz Real Estate & Investment Company as defendant. We shall herein refer to said parties as plaintiff and defendant, respectively. The plaintiff recovered judgment and defendant appealed. After the appeal was lodged in this court said Frazier died and the cause was revived in the name of his executors, who entered appearance and are now the respondents.

Plaintiff's action is in two counts. The first count is ejectment for a tract of about 18 acres of land, the east part of a larger tract of some 50 or 54 acres in the south half of Section 20, Township 44 North, Range 4 East, in St. Louis County. The whole tract of 50 or 54 acres is bounded on the north by the east and west center line of said Section 20 and comprises all the land in the south half of said section north of the Meramec River and west of the right of way of the Missouri Pacific Railroad Company. The tract in dispute is bounded on the north by said center section line, on the east or northeast for a short distance by the railroad right of way, on the southeast and south by the river and on the west by a line drawn from a point in said east-west center section line 377.57 feet east of the southwest corner of the east half of the northwest quarter of said Section 20 nearly due south to the river, where defendant, in 1931, built a fence, claiming to own the land east of the fence.

The second count of plaintiff's petition is an action to determine title to the same land described in the first count.

Defendant's answer admits possession, denies plaintiff's ownership and avers that defendant is the owner and that it and its predecessors in title have owned and been in possession of said land "ever since said tract, and the parts thereof were formed and deposited as accretions to the adjacent lands of this defendant, to-wit:

"'The East fractional half of the Northwest Quarter and the West fractional half of the Northeast Quarter of Section 20, in Township 44 North, Range 4 East, St. Louis County, Missouri.'"

By way of counterclaim defendant charges that plaintiff had committed trespass (describing same) upon said land and asked damages therefor.

The court found for plaintiff and against defendant on all the issues presented by the pleadings and entered judgment accordingly, adjudging the title to the land in controversy to be in plaintiff and denying recovery on defendant's counterclaim.

Under the pleadings the action is one at law. By agreement it was tried to the court without a jury. By request of both parties the court stated, pursuant to statute, Section 952, Revised Statutes 1929 (Mo. Stat. Ann., p. 1225), its conclusions of facts found separately from the conclusions of law.

The finding of facts is long. We shall endeavor to summarize the facts, quoting from the court's findings where it appears necessary for accuracy. It may aid in understanding this controversy to state here that, as the court found, defendant claims title to the land in controversy as an accretion to the east fractional half of the northwest quarter and the west fractional half of the northeast quarter of said Section 20, to which it had record title.

Plaintiff's record title starts with a patent from the United States to Elijah Compton, dated October 1, 1840, granting "the southwest fractional quarter and the southeast fractional quarter (north of Meramec River)" of said Section 20, containing 38.87 acres according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor General. By mesne conveyances the land so patented passed, by similar description, to Hudson Brothers Commission Company, which company conveyed to Benjamin Gratz, January 18, 1908, all of said two quarter sections north of the Meramec and southwest of the Missouri Pacific Railroad right of way, and describing the tract conveyed as containing 50.464 acres. Gratz, upon acquiring said land in 1908, recorded a plat showing 50.464 acres in the tract bought from the Hudson Brothers Commission Company and showing the Meramec River well to the south of the east-west center line of Section 20. Gratz conveyed to plaintiff by deed dated June 20, 1920, recorded September 20, 1920, by substantially the same description, but naming the acreage as 54.64 and referring to a recorded survey made by one "Elbring, Surveyor." All of the conveyances in plaintiff's chain of title purport to convey all the land north of the Meramec River in said southwest quarter and southeast quarter of Section 20 (except, as to the later ones, that east of the west or southwest line of the railroad right of way, not here involved.)

Defendant's record title starts with a patent from the United States dated October 29, 1844, granting to Nicholas N. Destrehan, with a large body of other land, "the east fractional half of the northwest quarter and the west fractional half of the northeast quarter" of said Section 20, the whole grant containing 1383.97 acres "according to the official plat of the survey of said lands returned . . . by the Surveyor General."

The land so patented to Destrehan, along with much other land owned by him, was partitioned among his four children in 1851. The decree in partition was rendered July 3, 1851. Appellant does not set out this decree in its abstract of record. Respondents produce it in their additional abstract. Appellant's counsel state in the abstract that "(The decree sets off to Peter Azby Nicholas Destrehan Lot No. 4 according to Plat 'A' attached thereto containing 650 acres of land -- Plat 'A' introduced as Defendant's Exhibit No. 1 -- and being bounded on the south by the Meramec River.)" There is no evidence shown in the abstract identifying said "Plat A." A photostatic copy of said plat was introduced by defendant as its Ex. 1, without explanation or identification, so far as shown by the abstract. The parties and the court seem however, to have treated said plat as one made in the course of the partition proceedings, though the record as abstracted does not show that it was. In this connection we note that the court's finding was inaccurate in this particular: The court stated that said east fractional half of the northwest quarter and west fractional half of the northeast quarter were conveyed to Peter Azby Nicholas Destrehan by partition deed dated July 3, 1851, as "Lot 4 of Plat A, containing 650 acres, and bounded . . . south by the Meramec River. . . ." There is no partition deed shown. The court must have meant the partition decree. The decree above referred to, which was introduced in evidence, was evidently...