Hardt v. Phillips Pipe Line Co.

• Decision Date: 26 July 1935
• Docket Number: No. 23511.,23511.
• Citation: Hardt v. Phillips Pipe Line Co., 85 S.W.2d 202 (Mo. App. 1935)
• Parties: HARDT et ux. v. PHILLIPS PIPE LINE CO.
• Court: Missouri Court of Appeals

85 S.W.2d 202

HARDT et ux. v. PHILLIPS PIPE LINE CO.

No. 23511.

St. Louis Court of Appeals. Missouri.

July 26, 1935.

Rehearing Denied September 10, 1935.

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

"Not to be published in State Reports."

Bill by Theodore Hardt and wife against the Phillips Pipe Line Company. Decree for plaintiffs, and defendant appeals.

Affirmed.

R. H. Hudson and G. P. Cantrell, both of Bartlesville, Okl., and Cecil L. Hunt, of St. Louis, for appellant.

Irl B. Rosenblum and Malcolm I. Frank, both of St. Louis, for respondents.

BECKER, Judge.

This is a suit in equity by plaintiffs, husband and wife, seeking to set aside and cancel a deed to the defendant for a pipe line right of way across plaintiffs' land. Upon trial of the case there was a decree for plaintiffs, and defendant in due course appeals.

Plaintiffs in their petition allege that they are husband and wife, residents of St. Louis county, Mo., and are owners as tenants by entirety of approximately 6.1 acres in said St. Louis county. In describing the lands so owned, the petition sets out verbatim the description contained in the right of way contract sought to be canceled. That portion of the petition material in this appeal reads as follows:

"Plaintiffs further state that several days prior to August 26th, 1930, a representative and agent of the defendant, acting within the scope and course of his employment, called to see plaintiffs at their home on the premises above described, requesting plaintiffs to sign a deed giving said defendant a right of way to lay its pipes through the land of plaintiffs above described, at a point which was then and had theretofore been surveyed, staked and marked by agents and servants of the defendant; that said representative indicated and told plaintiffs at said time that said right of way would be only about two and one-half feet wide, or the width of a ditch in which to lay said pipes; that at said time plaintiffs informed said agent of defendant that they would consent to the price that defendant's said agent offered them for said right of way, that it would be only two and one-half feet wide, and would be at the place marked, whereupon, on the 26th day of August, 1930, said agent paid plaintiffs the sum of thirteen dollars ($13.00) for said right of way at the place marked by stakes across plaintiffs' land, as aforesaid, where-upon plaintiffs, relying on said representations as to the width and location of said right of way, and at the solicitation and request of said agent of defendant, signed a paper purporting to be a deed conveying a right of way to defendant, which paper is recorded in the office of the Recorder of Deeds of St. Louis County, Missouri, in book 1093, at page 524; that at said time said document did not contain a description of plaintiffs' land or of the location of plaintiffs' land where said right of way was to be, but that the space in said document for the description of the land was left blank; that the defendant's said agent well knew at said time that the width of said right of way was intended to be wider, and fraudulently and wrongfully informed plaintiffs that it would only be two and one-half feet wide, and fraudulently and wrongfully misrepresented to plaintiffs the actual width which defendant contemplated making said right of way; that said agent for the defendant, and the defendant, fraudulently and wrongfully, and without plaintiffs' knowledge or consent, and without authority from them, inserted and attached to said document signed by plaintiffs, after plaintiffs had signed the same, and after the same had been delivered by plaintiffs to said agent, the description of plaintiffs' land, and fraudulently and wrongfully failed to define and set out in said description the part of plaintiffs' land over which said right of way was to run, but fraudulently and wrongfully subjected all of plaintiffs' said land to said right of way.

"Plaintiffs further state that at the time they signed said document the same was not acknowledged before a notary public and that they never appeared before a notary public to take their acknowledgment, nor was the same signed by a witness in their presence or with their knowledge or consent.

"Plaintiffs further state that said document constitutes a cloud on their title to their said land and that the same, for the reasons herein stated, is null and void.

"Plaintiffs further state that there is hereto attached, made a part hereof and marked `Exhibit A,' a copy of said document as it appears of record in the office of the Recorder of Deeds of St. Louis County, Missouri, as aforesaid, and that the portion of said document which contains or constitutes the description of plaintiffs' land was inserted in said document after plaintiffs had signed the same and after said document had gotten out of plaintiffs' possession."

Plaintiffs then allege a tender into court of the consideration paid to them for the execution of the contract, about which there is no contention, and conclude with a prayer for cancellation of said contract and removal of cloud from title. To the petition is attached, as an exhibit, a copy of the right of way contract.

As to the answer filed by defendant, it is sufficient, in light of the questions raised here on appeal, to state that it contains a general denial, and in further answering admits that: "A representative of defendant called to see plaintiffs for the purpose of obtaining a right of way deed from plaintiffs, which said deed would grant to defendant the right to lay, construct and maintain and operate an eight inch pipe line over and across the said lands of plaintiffs, for the conveyance and transportation of the above-named products, at a point which was then and had theretofore been surveyed, staked and marked."

The answer further asserts that the contract was fully filled out before being signed by the plaintiffs, and further asserts that the plaintiffs appeared before the notary and duly acknowledged the execution of the deed.

The answer further alleges that if the notary did place his jurat upon the deed without the knowledge and consent of the plaintiffs and without their having acknowledged the execution of the deed the notary did so without the knowledge or consent of the defendant and that the representative of the defendant did not have authority "to procure, aid, let or suffer the above-named notary to place an unauthorized acknowledgment upon the foregoing mentioned deed or any other instrument."

The evidence adduced by the plaintiffs showed that on August 26, 1930, G. W. Carney, an employee of the defendant, called upon the plaintiffs for the purpose of having them execute a right of way contract granting to defendant an easement over their land for the purpose of laying a pipe line across their land. When Mrs. Hardt asked Carney how much ground he would want for the pipe line, Mr. Carney replied, "Now, Mrs. Hardt, all we want is just to dig a narrow trench. We have machinery that digs that trench and we lay an eight-inch pipe and machinery covers it and that is the end of it."

The evidence further discloses that when Carney was asked to indicate with his hands the width of the trench referred to, he indicated about 2 or 2½ feet, but no wider; that Carney related that the line was to be laid over the route that surveyors had theretofore marked across plaintiffs' ground extending for a distance of approximately 16 rods.

Plaintiffs' evidence further discloses that the contract at the time it was signed did not contain a description of the portion of plaintiffs' land over which said right of way was to run, but that the document contained a blank for such description; that the parties agreed that only one pipe line would be run through plaintiffs' land and only along the line surveyed; and that there was no agreement authorizing Carney to fill in the blanks in the right of way contract with the description of the entire land so as to subject the entire tract to the easement.

Plaintiffs further testified that they never acknowledged the execution of the right of way contract in question before a notary public; that they were not acquainted with, had never seen, and never knew a man by the name of William Dunn, whose name appeared as notary public on the acknowledgment to the right of way contract. Further, Mrs. Hardt testified, when Dunn was in the courtroom at the time of the trial and was asked to arise, that she had never laid eyes on him before; that she never saw him before in her life; that he was never inside of her house or inside of her ground; that she had never spoken to the man previously. Her husband's testimony was to the same effect.

Mrs. Hardt testified to several later conversations with employees of the defendant, and that, as a result of these conversations and for the reason that she was not given a copy of the contract by Carney, she wrote to the defendant on August 26, 1932, asking for such a copy.

The defendant then sent her a photostatic copy of the contract, and upon receipt thereof, on September 7, 1932, the plaintiffs learned for the first time that the contract contained a typewritten description of plaintiffs' property. The original of the contract was introduced in evidence and the description of the plaintiffs' tract of land makes the entire tract subject to the easement. Though the description of the property was typewritten, the consideration of "$13.00" and the names of plaintiffs "Theodore Hardt and Mary Hardt, husband and wife," and "August 26, 1930," the date of the execution of the document, were in pen and ink. The right of way contract grants defendant a permanent right of way to pay, maintain, inspect, alter, repair, operate, remove, and relay a pipe line or pipe lines for the distribution of oil and gas and products and by-products thereof, etc., upon, under,...