Gray v. Temple
| Decision Date | 31 March 1865 |
| Citation | 35 Mo. 494 |
| Parties | MELVIN L. GRAY, ADM'R OF AUGUSTUS H. EVANS, Plaintiff in Error, v. PETER TEMPLE, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Land Court.
Wm. T. Wood, for plaintiff in error.
The authorities referred to by defendant in no way affect this question, for metes and bounds in this case are as much for plaintiff as for defendant, and the principle, in the cases referred to, will help neither party,
In the absence of authority in point for this case, it is left to stand upon the particular words and terms of the deed. (Smith v. Smith, 4 Bibb, 81; Grant v. Combs, 6 Mon. 281; Gilmore v. Morgan, 2 J. J. Mar. 65.)
Glover & Shepley, for defendant in error.
The legal effect of the words in the description of the land conveyed by the deed of Pryor Quarles to Robert Quarles, is to carry to said Robert Quarles the upper or western half of the entire tract; for,
I. It is a well known principle of law that metes and bounds will control, unless the deed shows a clear intent to give only a definite quantity. (Nichols v. Turney, 15 Conn. 101; Jackson v. McConnell, 17 Wend. 175.) Here, not only does the deed purport to carry the upper half of the entire tract purchased of Easton, then supposed to contain 630 arpents, but as if to prevent any question as to what was intended, it fixes the lower boundary of the tract conveyed by stating that the east or lower line of said upper half shall be parallel to the east line of the larger tract of which it formed a part. By reference to the plat it will be seen that there are three ways in which the tract can be divided into two equal parts: one is to divide it so that the dividing line shall be parallel to the upper or tract line of the tract; the second is to place the dividing line arbitrarily without paying any attention to the east or west lines of the tract, and the other is to make the dividing line parallel to the lower or east line of said tract; and it was this last manner of division that the deed requires shall be made.
II. The words “which shall contain 315 arpents” do not in any manner show any intention to limit the land conveyed to the quantity of 315 arpents. The most that can be said is that these words are a warranty that the upper half shall not contain less than 315 arpents. Suppose the same description had been used in a bond to convey, instead of the deed itself, and there was a suit for specific performance, is it not clear that the legal effect was to agree to convey the upper half, with a warrant that that upper half shall contain at least 315 arpents.
III. The use of the words “shall contain 315 arpents,” when taken in connection with the after recital that the entire tract consisted of 630 arpents, shows an evident intention that the land shall be divided equally between grantor and grantee.
IV. If the dividing line is not definitely fixed by the deeds, then the parties are tenants in common, and no action lies for trespass. (4 Kent's Com. 359.)
Plaintiff filed a bill in the St. Louis Land Court to restrain defendant from cutting timber upon land therein described, which he alleged belonged to him. Defendant in his answer denies having cut any timber upon any land of the plaintiff, and alleges that the land upon which he did cut timber was his own land, and not the property of the plaintiff.
It appears from the record in the case, that on the 15th May, 1819, Rufus Easton and wife conveyed to one Pryor Quarles a certain tract of land, which in the deed of conveyance is described as follows:
“A certain tract or parcel of land situate on the south bank of the Missouri river, in the township of St. Ferdinand, county of St. Louis, Territory of Missouri, containing six hundred and thirty arpents, more or less, and bounded on the north by the Missouri river, on the east by land granted and confirmed to John N. Seely, on the south by land confirmed to James James, and on the west by land now owned and possessed by Jaques Seely, it being the same land, four hundred and eighty arpents of which was granted and confirmed to Daniel and Samuel Hodges, and by them deeded to said Easton by deed dated the second day of April, in the year 1810, and 150 arpents of which is a part of a tract of 400 arpents granted and confirmed to Gilbert Hodges, and by said Gilbert deeded to said Easton on the 21st of October, 1815.”
On the 21st March, 1820, Pryor Quarles and wife conveyed to Robert Quarles a part of said tract, which is described in the deed as follows:
“All their right, title and interest, which the said Pryor and Joannes Quarles may have of, in and to the following tract, or parcel of land, to wit: the upper half tract of land purchased by the said Pryor Quarles of one Rufus Easton, by deed dated the 15th day of May, 1819, which tract of land now intended to be granted and sold shall contain three hundred and fifteen...
To continue reading
Request your trial
-
Pruitt v. St. Johns Levee & Drainage Dist.
...following a particular description is merely descriptive and does not determine the quantity sold. Campbell v. Clark, 6 Mo. 619; Gray v. Temple, 35 Mo. 494; Campbell Johnson, 44 Mo. 247; Wood v. Murphy, 47 Mo.App. 539; Porter v. Robinson, 29 S.W.2d 133; Hendricks v. Vivion, 118 Mo.App. 421.......
-
Pruitt v. St. Johns Levee & Drain. Dist.
...following a particular description is merely descriptive and does not determine the quantity sold. Campbell v. Clark, 6 Mo. 619; Gray v. Temple, 35 Mo. 494; Campbell v. Johnson, 44 Mo. 247; Wood v. Murphy, 47 Mo. App. 539; Porter v. Robinson, 29 S.W. (2d) 133; Hendricks v. Vivion, 118 Mo. A......
- Waddell v. Chapman
-
Whitehead v. Ragan
...lot, was any proof of that fact. Dolde v. Vodicka, 49 Mo. 98; 1 Washburn on Real Prop. [1 Ed.] 635; Orrick v. Bower, 29 Mo. 210; Evans v. Temple, 35 Mo. 494; Myers v. Louis, 82 Mo. 307; Kronenberger v. Hoffner, 44 Mo. 185; Rutherford v. Tracy, 48 Mo. 325. (5) The court refused defendant's i......