Frieze v. Snider

• Decision Date: 05 December 1921
• Docket Number: No. 14173.,14173.
• Citation: 235 S.W. 184
• Parties: FRIEZE v. SNIDER
• Court: Missouri Court of Appeals

235 S.W. 184

FRIEZE v. SNIDER

No. 14173.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Vernon Frieze against E. L. Snider for breach of the covenants of a warranty deed, in which the defendant asked that the deed be reformed. Judgment for defendant, and plaintiff appeals. Affirmed.

W. O. Jackson, of Butler, for appellant.

D. C. Chastain, of Butler, for respondent.

PER CURIAM.

This is a suit for damages for breach of the covenants of a warranty deed. The petition is in three counts: The first count is to recover general taxes paid by the plaintiff in the year 1919; the second count is to recover taxes paid a drainage district in the year 1919; and the third: count pleads that at the time of the execution of the deed in question defendant was not seized of an indefeasible estate in the property conveyed; that a railroad company had an outstanding and paramount title to a strip of ground about 100 feet wide across the tract of land conveyed. The answer was a general denial coupled with an allegation, among other things, that by mutual mistake the deed was so drawn as to show the condition alleged in plaintiff's petition, and asked, among other things, that the deed be reformed to show the true agreement. At the close of the evidence the trial court entered judgment that the deed be reformed to show that plaintiff was to pay the taxes, and that the 100 feet of ground mentioned in the petition was conveyed subject to the right of way of the railroad. Plaintiff has appealed.

Defendant has filed a motion to affirm together with a brief on the merits. We think the motion is well taken. The record proper fails to show that a motion for a new trial was filed and overruled, that a bill of exceptions was filed, or that an appeal was taken. It likewise does not recite that the appeal was "duly" taken or that the bill of exceptions was "duly" filed, which recitations are permitted by rule 26 of this court (169 S. W. xv) in lieu of the abstracting of the record entries showing these things. It has been ruled time and again by the Supreme Court and each of the Courts of Appeals that the record proper must show that the motion for new trial was filed and overruled,. that the bill of exceptions was filed, and that an appeal was taken. Wallace v. Libby, 231 Mo. 341, 132 S. W. 665; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Parkyne v....