Hillman v. Hedgpeth, Nos. 11156

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: MAUS
• Citation: 600 S.W.2d 625
• Parties: Vern E. HILLMAN and K. Joan Hillman, Plaintiffs-Appellants, v. Leslie Ray HEDGPETH and Estia Florene Hedgpeth, Defendants-Appellants, and Lena M. Kimmons, Defendant-Respondent.
• Decision Date: 27 May 1980
• Docket Number: Nos. 11156,11166

Page 625

600 S.W.2d 625 Vern E. HILLMAN and K. Joan Hillman, Plaintiffs-Appellants,
v.
Leslie Ray HEDGPETH and Estia Florene Hedgpeth, Defendants-Appellants,
and
Lena M. Kimmons, Defendant-Respondent. Nos. 11156, 11166. Missouri Court of Appeals, Southern District, Division Four. May 27, 1980.

Page 626

Benjamin J. Francka, Phillip R. Garrison, Farrington, Curtis, Knauer, Hart & Garrison, Springfield, for plaintiffs-appellants.

William A. Wear, Blythe Crist-Brown, Wear & Wear, Springfield, for defendant-respondent.

MAUS, Presiding Judge.

In this action the plaintiffs sought a judgment quieting title to and for possession of 40 acres against defendants Hedgpeth, or in the alternative for recovery upon a breach of covenants of title against their grantor, defendant Kimmons. At the close of the plaintiffs' evidence, the trial court first sustained the "motion for directed verdict" of defendant Kimmons. Then, after refusing their request to withdraw the same, the trial court sustained a similar motion of defendants Hedgpeth. The plaintiffs and defendants Hedgpeth appeal.

The property involved in this action is the Northwest Quarter of the Southeast Quarter of Section 12, Township 27, Range 23, in Christian County, the whole of which contains 40.13 acres. At one time the "old Mt. Vernon-Ozark road" entered this forty acres at the northeast corner thereof, extended west adjacent to the north boundary for a distance of approximately 700 feet, then angled southwest and left the property approximately 660 feet south of the northwest corner of that forty acres. While the date does not appear, this road beyond the southwest corner of the Delaware Cemetery (approximately 200 feet east of the northeast corner) was not used or maintained for some time before that portion was vacated by an order of the county court on March 3, 1958. The property in dispute is that part of the forty north and west of the old road and the area of the vacated road. There was a fence along the north side of the old road. There were remnants of an ancient fence along the south side of the old road, although this fence had not been "kept up" for years before 1954. After responding to an advertisement offering 40 acres for sale, the plaintiffs were shown the property by a realtor with whom it was listed. This was a brief inspection as it was wet and cold. The parties did not walk the boundaries or examine the fences. The realtor said he did not know the boundaries, but that there were 40 acres. There was no reference to the abandoned old road. A few days later the plaintiffs made an offer to the realtor of $525 per acre, a price less than that quoted to them. The realtor prepared an "Offer to Purchase with Acceptance" which was signed by Vern E. Hillman who, with her authority, also signed on behalf of his wife K. Joan Hillman, as buyers. In this instrument dated April 15, 1975, the owner is listed as Lena M. Kimmons (John Kimmons Estate) and it was signed "Lena M. Kimmons, Admx." as the seller. The property was described as 40 acres, more or less, adjacent to and south of Delaware Cemetery bordered by James River on the south, legal survey to govern. The price was recited to be $21,000, with $1,000 down and the balance on closing. This was followed by: "This is subject to probate court approval." The closing date was fixed as May 1, 1975. The conveyance was to be by general warranty deed "free and clear of all liens except as follows: None." The instrument provides for optional forfeiture of the down payment upon the buyers' failure to perform. It further provides that should the seller be unable to convey a marketable title, the sole obligation of the seller shall be to refund the down payment and pay the buyers' reasonable cost of title examination. Approximately three weeks after the execution of this instrument plaintiff Vern E. Hillman returned to the property for a second look. This time he did walk the fences and did notice the old road. He noticed no cattle and the land on either side of the road looked the same.

Closing was delayed. The abstract presented for examination covered said NW-1/4 SE-1/4 and was certified to July 11, 1975. The abstract discloses that this forty

Page 627

had been inventoried and administered as a part of the estate of John B. Kimmons and that with the permission of the other distributees and upon the usual proceedings for the sale of real property defendant Lena M. Kimmons individually had purchased the property so described. Relevant to the issues in this case, the opinion of the attorney who examined for the plaintiffs directed their attention to instruments reflected in the abstract that unmistakably disclose the Hedgpeths' claim to the portion north and west of the old road. Plaintiff Vern E. Hillman complained to the realtor concerning this disclosure and was told the seller had 40 acres and he could "take it or leave it." Against the advice of their attorney, the plaintiffs chose to take it. The transaction was closed in the office of the realtor on August 4, 1975. The seller and the buyer were in separate rooms and there was never any direct communication between them. The balance of the purchase price was paid and the deed delivered to the plaintiffs. The deed is a general warranty deed in customary form in which defendant Kimmons is the grantor and the plaintiffs are the grantees. The description was: "The Northwest Quarter of the Southeast Quarter (NW-1/4 SE1/4)of Section 12, Township 27, Range 23, Christian County, Missouri". The granting clause employs the words "grant, bargain and sell" which imply the statutory covenants of title. § 442.420 RSMo. The deed also contained the customary express covenants of seisin of "an indefeasible estate in fee", against encumbrances and to warrant and defend the title. These express covenants are followed by the typed words "Except taxes for 1975 & thereafter".

Concerning the title...