Harding v. Wright

• Decision Date: 16 December 1893
• Citation: 24 S.W. 211,119 Mo. 1
• Parties: Harding et al., Appellants, v. Wright
• Court: Missouri Supreme Court

24 S.W. 211

119 Mo. 1

Harding et al., Appellants, v. Wright

Supreme Court of Missouri, Second Division

December 16, 1893

Appeal from Mississippi Circuit Court. -- Hon. H. C. O'Bryan Judge.

Reversed and remanded.

E. R Lentz for appellants.

(1) The effect of the deed offered in evidence by the plaintiffs was to convey to plaintiff, Mary Harding, all the land lying between the point of beginning and the east line of the lot then owned by defendant, E. W. Wright, whether the same be eight feet or sixteen feet, and in this respect it mattered not whether her deed was recorded or not. The language of the deed is plain and certain, and cannot be contradicted or explained by parol testimony. Whittlesey v. Kellogg, 28 Mo. 404; Jennings v. Brizeadine, 44 Mo. 334; McCafferty v. Conover, 7 Ohio St. 99; Campbell v. Johnson, 44 Mo. 250; Smith v. Catlin Land & Imp Co., 117 Mo. 438. (2) The defendant is not protected as an innocent purchaser without notice of plaintiff's claim, because of the fact of plaintiff's deed not being on record, because he himself says that he knew that Hardings had a deed and were claiming all the strip of land in controversy before he took the deed from Ferguson. (3) Testimony of Martin Ferguson is set out in defendant's application for a continuance, was incompetent, irrelative and immaterial and should have been excluded. The court committed error in admitting the same. 1 Greenleaf's Evidence, sec. 275; Jennings v. Brizeadine, 44 Mo. 334; Campbell v. Johnson, 44 Mo. 250; McCafferty v. Conover, 7 Ohio St. 99; Jones v. Shepley, 90 Mo. 313; Koehring v. Muemminghoff, 61 Mo. 407; Murdock v. Ganahl, 47 Mo. 137; Lumber Co. v. Warner, 93 Mo. 384. (4) The declaration of law given by the court at the request of the defendant proceeds upon the theory that the effect of the deed read in evidence by plaintiff could be varied or contradicted by parol testimony. It is, therefore, not the law and should not have been given. For this error, the judgment should be reversed. See same authorities cited under third point. (5) The declaration asked by the plaintiffs, and refused by the court, presents the true theory of this controversy and should have been given and followed by the court in rendering its judgment. For error in not doing so, the judgment should be reversed. (6) The judgment is contrary to law and against all the competent testimony in the case. Judgment should have been for the plaintiffs instead of the defendants.

J. C. Sheppard for respondent.

(1) While parol evidence cannot be received to prove that the parties intended something different from that which the language of the deed expresses, yet if the language used in the description is uncertain and doubtful, the practical construction given to the deed by the subsequent acts of the parties may be shown by parol. Wolf v. Dyer, 95 Mo. 545. The general rule seems to be that in all cases where a difficulty arises in applying the words of an instrument to the subject-matter, it is proper to remove the ambiguity by the introduction of extrinsic evidence. King v. Fink, 51 Mo. 209. (2) The intention of the parties to a contract should control in its interpretation. Jennings v. Brizeadine, 44 Mo. 332; Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopiano, 48 Mo. 194; Belch v. Miller, 32 Mo.App. 387. (3) The words "more or less" cannot be construed into an amount twice as great as the amount called for, or an indefinite quantity, but will allow only a slight departure from the quantity expressed, and are not of themselves so ambiguous as to render parol testimony admissible. Shickle v. Co., 10 Mo.App. 241; S. C., 84 Mo. 161. (5) The parties having agreed upon a boundary, it should be permitted to stand, especially so when it corresponds to a strict interpretation of the deed itself. Major's heirs v. Rice, 57 Mo. 388; Jacobs v. Mosley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 574.

OPINION

Gantt, P. J.

This action of ejectment was commenced in the circuit court of Butler county and taken by a change of venue to Mississippi county. The petition is in the ordinary form, the land in controversy being described as follows, to-wit:

"All that part of lot 102 in the original town (now city) of Poplar Bluff, Missouri, described as follows, to-wit: Commencing one hundred and four feet west from the northeast corner of said lot, running thence west to the line of the lot owned by E. W. Wright, a distance of eight feet, more or less; thence south parallel with Sixth street one hundred and four feet; thence east parallel with Poplar street eight feet, more or less, to the west line of the lot now owned by the said Mary Harding; thence north parallel with Sixth street to the place of beginning."

The answer contains, first a general denial; second, a special denial that he is not now nor was at the time of the commencement of this suit in possession of the land described in plaintiff's petition; third, a former adjudication, in another action of ejectment for the same land between the same parties.

It was admitted that both parties claim under Martin Ferguson as the common source of title. Plaintiff read in evidence a general warranty deed from Martin Ferguson and wife to Mary Harding dated October 2, 1888, and filed for record October 17, 1888, at 10:20 o'clock A. M. and recorded in book W at page 595, conveying the land described in plaintiffs' petition.

Plaintiff then read in evidence the deposition of John Harding one of the plaintiffs in the above entitled cause, who testified in substance as follows:

"I am one of the plaintiffs; am acquainted with the defendant; know the land in controversy. Shortly after Mary Harding purchased the land in question from Martin Ferguson, the defendant came and took possession of the west half of the land described in the deed to plaintiff; I think it must have been about three weeks after we bought it that he took possession of it; and he has had possession of it ever since and is now in possession of it. The defendant told me he had a deed for the same land, or a part of it. I had a conversation with the defendant before the one in which he told me he had the deed; in that conversation I told him that I had a deed for all the land lying between the lots then owned by defendant and the lot I owned prior to the date of the deed referred to; I think this was a day or two before he told me he had a deed for the land."

Plaintiff read the deposition of J. Perry Johnson, who testified in substance that he was present at the trial of the former suit for the same land, in the Butler circuit court, and heard defendant Wright's testimony: "As far as I can remember, Mr. Wright in his testimony stated that he knew, or had heard that Harding's deed covered the land in controversy, and my impressions are that he stated that he knew that Harding claimed the land before he (Wright) procured the deed from Ferguson." Plaintiffs then rested.

Defendant offered and read in evidence a deed from Martin Ferguson and wife to E. W. Wright, dated October 17, 1888, and filed for record October 17, 1888, at 9:25 o'clock A. M., and purporting to convey to E. W. Wright the following described land, to-wit: All that part of lot 102, in the original town (now city) of Poplar Bluff, Missouri, described as follows, to-wit: Commencing at a point on the north boundary of said lot, sixty feet east from the northwest corner thereof, running thence south one hundred and four feet, three inches; thence east parallel with the northern line of said lot eight feet; thence north parallel with the west line of said lot one hundred and four feet and three inches; thence west along the northern boundary to the place of beginning.

Defendants introduced E. W. Wright, defendant, who testified in his own behalf in substance as follows:

"I originally bought from Martin Ferguson sixty feet off of the west side of lot 102, in Poplar Bluff, which left a strip sixteen feet wide between my lot and plaintiff's lot afterward Harding told me that he had bought that strip, eight feet more or less; shortly afterwards I went away and when I came back my wife told me the lot was surveyed and the line struck our house. Next morning Harding came to me and...