Howe v. William

• Decision Date: 31 January 1873
• Citation: 51 Mo. 252
• Parties: THOMAS W. HOWE, Plaintiff in Error, v. W. P. WILLIAM Defendant in Error.
• Court: Missouri Supreme Court

51 Mo. 252

THOMAS W. HOWE, Plaintiff in Error,

v.W. P. WILLIAM Defendant in Error.

Supreme Court of Missouri.

January Term, 1873.

Error to Dent Circuit Court.

Ewing and Smith, for Plaintiff in Error, cited Hardy vs. Matthews, 38 Mo., 121; Bates & Wise vs. Bank of Missouri, 15 Mo., 309; Long vs. Wagoner, et al., 49 Mo., 178; 1 Brightly's Digest, (U. S. Laws,) 650, § 27.

C. C. Bland, for Defendant in Error.

Cited.--Washb. on Real Property, 2d Ed., 661; Boardman vs. Reed, 6 Pet., 328; Mason vs. White, 11 Barb., 173; Campbell vs. Johnson, 44 Mo., 247; Ashley vs. Bird, 1 Mo., 640; Lane vs. Price, 5 Mo., 101; Singleton vs. Fore, 7 Mo. 515; Davis vs. Davis, 8 Mo., 56; Reed vs. Austin, 9 Mo., 723; Bates vs. Bank of Mo., 15 Mo., 309; Murdock vs. Ganahl, 47 Mo., 135. Richmond T. & M. Co. vs. Farquar, 8 Blackf. 89; Cook vs. Parkarson, 16 Louisiana, 129; Bennett vs. Hubard, Minor, 270; Doe. d Tyrell vs. Lyford, 4 M. & S., 550; Stead vs. Perrier, Sir T. Raym, 411; Bac. Max., Reg., 23; Broom's Max., 584; 1 Greenl, on Ev., 297; Wigr. Extr. Ev., 3d Ed., 120, 121; Beard vs. White, 1 Alabama, 436.)

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Dent Cir cuit Court, by plaintiff against the defendant to recover certain lands.

The answer was a general denial, except as to the possession.

For the purpose of showing title, the plaintiff read in evidence a Patent from the United States for the lands, and then offered a deed from one Poindexter and wife to him, conveying the said lands, but the deed did not recite the County in which the lands were situated, nor the land office in which they were subject to sale. The defendant objected to the reading of the deed in evidence because the description of the same was uncertain and indefinite, and did not show in what County the same were situated, what principal Meridian they were west of, nor in what Land office they were subject to entry and sale. The Court sustained the objection, and the plaintiff took a non-suit, and after an ineffectual motion to set the same aside, he has brought the case here by writ of error.

The land is accurately described in the deed by section, township and range, and the deed is regularly acknowledged before a Justice of the Peace of Dent County, but it is not stated in what County the same is situated. The uncertainty of description and ambiguity is supposed to exist from the fact, that under the United States system of surveys the description would apply to lands in other states, as well as to the land in question. If the deed, from the circumstances surrounding it, substantially shows the land to be in this State, then the ambiguity at once disappears, for there is no other parcel of land in Missouri that answers to the description contained in the Deed. (Long vs. Wagoner, 47 Mo., 179.)

If the deed sufficiently identifies the land as being located in this State, then there can be no controversy, as there are no other lands answering the same description.

Washburn in speaking of the rules in regard to the construction of the...