Gillenwaters Bldg. Co. v. Lipscomb

• Decision Date: 12 June 1972
• Docket Number: No. 56036,No. 2,56036,2
• Citation: 482 S.W.2d 409
• Parties: GILLENWATERS BUILDING COMPANY, a Corporation, Appellant, v. Caleb Lee LIPSCOMB and Ellen Marie Lipscomb, husband and wife, Respondents
• Court: Missouri Supreme Court

Page 409

482 S.W.2d 409

GILLENWATERS BUILDING COMPANY, a Corporation, Appellant, v. Caleb Lee LIPSCOMB and Ellen Marie Lipscomb, husband and wife, Respondents.

No. 56036.

Supreme Court of Missouri, Division No. 2.

June 12, 1972.

Motion for Rehearing or for Transfer to Court En Banc Denied

July 17, 1972.

Keith V. Williams, Mayte B. Hardie, Springfield, for appellant.

James K. Prewitt, Prewitt, Jones, Wilson & Karchmer, Springfield, for respondents.

HENRY I. EAGER, Special Commissioner.

This is an action by the holder of the record title to quiet its title to lot 4 and the north 19.6 feet of lot 5, Block 'I' in the Amended Plat of Brentwood Estates in Springfield. Defendants answered, stating that they were the owners of the north 19.6 feet of lot 5, and they filed a counterclaim asking that title thereto be quieted in them. The issues at trial involved only that 19.6 feet and the petition was orally amended. We are required to take jurisdiction because title to real estate is involved and the transcript was filed before January 1, 1972.

Lot 4 lies north of lot 5. The addition had obviously been surveyed when it was laid out; the plat had been filed. Plaintiff received its title to lot 4 and the north 19.6 feet of lot 5 from Gillenwaters & Company, a corporation, by deed of September 19, 1969. The latter had received title to much of the adition from various members of the Gillenwaters family by deed of May 13, 1957. By deed of December 21, 1959, Gillenwaters & Company conveyed to E. Howard Esterle and wife all of lot 5 except the north 19.6 feet thereof, and certain other land adjoining lot 5 on the east which is not involved here. By deed of December 31, 1959, the Esterles conveyed the same property to the defendants. A title opinion, in evidence as an exhibit and written for a Savings & Loan Association on May 20, 1960, covered the same property. The only definite evidence regarding the officers of Gillenwaters & Company was that J. D. Gillenwaters was President, and O. T. Gillenwaters was Secretary at the time of trial, but how far back that status extended is not shown.

In 1959 Mr. Esterle, who was a builder, proposed to build a house for defendants, apparently upon a plan presented by Mr. Esterle, and upon a lot to be selected. The defendants had in mind the lot in question (which was later conveyed to them) and also one somewhere else. Defendant Lipscomb testified, in substance: that he viewed the lot and was shown 'the general property line'; that later Esterle called him, they went again to the lot, and met Mr. O. T. Gillenwaters there; that Esterle had staked out defendants' house and 'it was too big to go on the lot' and 'there was no way to fit the house * * * on the lot'; that 'Mr. Gillenwaters, rather than to lose the sale, said: 'I'll just give you some more land off the lot to the north of me", and with 'this agreement we proceeded.' Mr. Lipscomb further testified: that he 'was to get' a wedgeshaped piece of ground 38 feet wide at the front and tapering to a point at the back (which does not in any sense fit the 19.6 foot strip claimed here); that he asked Mr. Gillenwaters to stake the piece off, and that he did it or had it done; that when his house was built they took possession of the wedge-shaped strip, put a hedge along it, planted and mowed grass, planted shrubbery, and in general treated it as a part of their lot; that the grass, etc., on the lot to the north was high and unkempt. Some years later, and probably about 1965, plaintiff or Gillenwaters & Company staked out a house on the lot to the north and, according to defendant Lipscomb, violent discussions ensued between him and J. D. Gillenwaters as to the ownership of the strip or that part of it which defendants had been using. At that time, according to Mr. Gillenwaters, Lipscomb 'inquired to buy the property.' Nothing was done for a time. Eventually plaintiff started to put in a chain link fence, someone took out the posts, and this action was filed. A photograph of the line of posts, reconstructed more or less, was admitted to show where defendant thought that plaintiff claimed the line to be. It is extremely difficult to describe from this record precisely where the respective lines lie but, according to Lipscomb's testimony, the line of the property as conveyed to him, would come within one foot of an extension of his porch, which plaintiff's counsel frequently referred to as a retaining wall; it is also said to pass through the branches of a tree of the defendants. A house has been built on the property north of defendants, and sold. Defendant Lipscomb necessarily admitted that his deed, his deed of trust, the title opinion and a second deed of trust all excluded the 19.6 feet. When we refer to 'defendant' we are indicating Mr. Lipscomb.

Mr. Esterle and O. T. Gillenwaters expressly denied any and all conversations about giving defendants more land and Esterle had no recollection of meeting defendant and Gillenwaters at the lot. This, of course, cannot restrict the effect of defendants' testimony in considering whether they made a submissible case. J. D. Gillenwaters testified that their companies had always claimed this strip, and he produced tax receipts specifically covering it for the years 1962--1969, inclusive. There had been some grading or terracing across the strip when defendants built their house. Plaintiff is in the construction business; Gillenwaters & Company was evidently a family holding company. The hedge placed by defendants ran 'cata-cornered' and was not on any 'legal alignment.'

Defendants do not claim by adverse possession; in fact, their total occupancy to the filing of suit was for less than ten years. Their theory was that they had acquired title by an oral agreement between adjoining owners upon a boundary line, and acquiescence. The trial court submitted plaintiff's case to the jury upon an instruction hypothesizing that it was the owner and entitled to possession, unless if found for defendants upon another instruction hypothesizing (1) 'an uncertain and disputed boundary line,' (2) an agreement between defendants and plaintiff's predecessor on the line, and (3) a taking of possession. Defendants' counterclaim was also submitted upon those three elements. The jury found 'the issues in favor of defendants and against the plaintiff,' making no distinction between plaintiff's petition and defendants' counterclaim. The Court had, during trial, expressed doubt as to the applicability of defendants' theory and cases to the situation presented. However, it entered a judgment in favor of defendants and against plaintiff on plaintiff's petition and on defendants' counterclaim and adjudged that defendants were the owners in fee simple of the disputed tract, namely, 19.6 feet as described; also, that plaintiff had no interest therein and was enjoined from claiming any right or interest. The motion for judgment or a new trial was overruled by lapse of time.

Defendants first contend here that plaintiff failed to preserve in its after-trial motion either of the points it raises on this appeal. These are: (1) that the trial court should have directed a verdict for plaintiff or sustained its after-trial motion for judgment because defendants did not make a submissible case that a boundary dispute existed which had been settled by agreement; (2) that the two instructions given for defendants on the merits were not supported by the evidence, and did not sufficiently identify the alleged agreed line. In plaintiff's motion it was alleged: that defendants failed to plead or prove a claim upon which relief could be granted or a defense to plaintiff's claim; that the Court erred in denying plaintiff's motion for directed verdict; that the defense had, over objection, converted the proof from the legal issues raised by the pleadings into 'alleged' equitable issues, and that the verdict of the jury on such equitable issues was not binding on the court. The motion contained many other allegations, with some concerning defendants' main instructions; these included one that those instructions submitted issues not pleaded 'nor proven.'

In essence, the sole issue here is whether the evidence of defendants was sufficient to create a submissible defense to plaintiff's action based on its record title and whether it was sufficient to justify submission of defendants' counterclaim to quiet title. We hold that the allegations of plaintiff's after-trial motion were sufficient to call...