Hubbard v. Whitehead

• Decision Date: 29 June 1909
• Citation: 121 S.W. 69,221 Mo. 672
• Parties: HUBBARD et al. v. WHITEHEAD et a.
• Court: Missouri Supreme Court

121 S.W. 69

221 Mo. 672

HUBBARD et al. v. WHITEHEAD et a.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

1. DEEDS (§ 93) — CONSTRUCTION — INTENT OF PARTIES.

Effect must be given to the intention of the parties to a deed, and, to that end, that must be considered certain which can be made certain.

2. BOUNDARIES (§ 3) — CONSTRUCTION — TWO DESCRIPTIONS.

Where there are two descriptions in a deed, one consistent with a reasonable hypothesis and the evident intention of the parties and the other rendering it absolutely inoperative, the false or incorrect call will be rejected, and the description applied in the light of the facts existing at the time.

3. EVIDENCE (§ 460) — PAROL EVIDENCE AFFECTING WRITINGS — DEEDS.

Extrinsic evidence is admissible to explain the calls of a deed for the purpose of applying them to the subject-matter and giving effect to the deed.

4. DEEDS (§ 111) — DESCRIPTION — SUFFICIENCY.

Though a deed must so describe the land sought to be conveyed that it can be identified, the court will put itself in the position of the parties as near as possible, and consider the circumstances and interpret the words used in the light thereof.

5. BOUNDARIES (§ 3) — CONFLICTING DESCRIPTION.

The starting point in a description, where fixed, certain, and notorious, generally controls if there is a conflict between it and other calls; but where succeeding calls are as readily ascertained and as little liable to mistake, they are of equal dignity, and, where they all conflict with the starting point and agree with each other, they control.

6. DEEDS (§ 111) — CONSTRUCTION — DESCRIPTION.

In determining whether a deed was intended to include lots, the court will take into consideration that immediately upon its delivery grantor gave grantee actual possession of the lots, and grantee fenced the entire tract, built a house and barn upon it, and resided thereon, and that neither grantor nor his heirs for a period of 46 years ever made any claim of ownership or paid any taxes.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Ejectment by Joseph R. Hubbard and another against Charles W. Whitehead and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

E. P. Gates and English & English, for appellants. McCune, Harding, Brown & Murphy and C. S. Palmer, for respondents.

GANTT, P. J.

This is an action in ejectment. The petition is in the ordinary form, and the answer is a general denial. The land in dispute is the following: Lots 90 and 91, block 13, Hubbard's addition to the city of Kansas (now Kansas City), and consisting of about 85 feet at the southwest corner of Eighth and Wyandotte streets in Kansas City. A portion of lot No. 90, in fact all thereof except two feet and three inches, was condemned and taken as a part of Eighth street in 1880. The said portion is not in question in this suit. On March 8, 1834, the United States issued to Callise Montardeau a patent for the N. W. ¼ section 5, township 49, range 33, which includes the land sought to be recovered in this action. Chester Hubbard, the father of appellants Joseph R. Hubbard and Ellen R. Jeffries, is the common source of title. Chester Hubbard died in 1861. By their warranty deed dated August 9, 1856, Chester Hubbard and Mary R. Hubbard, his wife, conveyed to S. J. Platt land in Jackson county, Mo., described as follows: "Beginning at the north line on the east side of Wyandotte street in block 15 in Hubbard's addition to the city of Kansas, and the state aforesaid, running south by said Wyandotte street 122 feet, more or less, to land owned by Kersey Coates; thence east to land belonging to the estate of Elijah Jackson, deceased; thence north 122 feet, more or less, to land owned by Swope, being same formerly owned by James Gregory; thence west 127 feet to the place of beginning."

Plaintiff asserts that Chester Hubbard by his last will and testament devised his real estate to his wife, Mary, for life, with remainder to plaintiffs, his children. Defendants contend that the record fails to show that the will of Chester Hubbard was ever proven in accordance with the laws of Missouri, and it was therefore insufficient to pass title to said lands in this state. Mrs. Mary Hubbard died in 1900, and the plaintiffs claim that by her death the life estate fell in, and they as remaindermen became entitled to possession of the said lands. The respondent the Missouri Union Trust Company claims title to the tract in controversy through mesne conveyances from said Samuel J. Platt, and the sufficiency of these conveyances to vest in respondents whatever title Samuel J. Platt acquired by his deed from Chester Hubbard and wife is not now disputed by the plaintiffs. Hubbard in his lifetime platted a tract of land, which includes the lots in controversy, calling it "Hubbard's Addition," and this plat is referred to in all the deeds under which the defendants claim. This plat is copied in the record. The only question in this case is whether or not the deed from Hubbard and wife to Platt includes the land in controversy herein. It is the respondent's contention that the description in this deed conveys land in block 13 in Hubbard's addition, which lies three blocks south of block 15, and it is clear from the monuments and pointers referred to in the description that the point of beginning should be the northwest corner of block 13, instead of the northwest corner of block 15. At the date of the execution of this deed, Chester Hubbard owned all the lots in block 15 fronting on Wyandotte street, and also lots 90 and 91 in block 13 fronting on Wyandotte street, together with a portion of the frontage on said street between said blocks 13 and 15. The first course set out in the description is: "South by said Wyandotte street 122 feet more or less to land owned by Kersey Coates." At the date of this deed, the only lot owned by Kersey Coates in Hubbard's addition on the east side of Wyandotte street was lot 92 in block 13, and Kersey Coates owned no lot in block 15. The description in the deed fixes the western boundary as "land belonging to the estate of Elijah Jackson." The estate of Elijah Jackson owned no land adjoining lots in block 15 on the west, but did own land forming the western boundary of lots 90 and 91 in block 13. The description also fixes the northwestern boundary as the "land owned by Swope, being the same formerly owned by James Gregory." The land owned by Thomas H. Swope and conveyed to him by James Gregory and wife on February 20, 1856, joined block 13 on the north, while the northern boundary of block 15 belongs to John La Sarge. Again, the description calls for a lot 127 feet in depth. This is the exact depth of lots 90 and 91 as shown by the plat, while the lots in block 15 are only 70 feet in depth, and the land adjoining block 15 on the east was not owned by Hubbard. On September 8, 1856, and within one month after the execution of the deed in question, Chester Hubbard and wife conveyed to Hezekiah H. King lots 81 to 85, inclusive, in block 15, being the land at the northwest corner of block 15. The abstract of title admitted in evidence under the stipulation of counsel showed that Chester Hubbard never attempted to make any conveyances of lots 90 and 91 in block 13 other than by his deed to S. J. Platt. The land immediately joining lots 90 and 91, block 13, was known as Jackson estate land when this deed was executed. Neither Chester Hubbard, nor his wife or children, have ever been in possession of this...