Huffman v. Benitez
| Decision Date | 14 October 1946 |
| Docket Number | 39900 |
| Parties | A. D. Huffman and Etta Huffman, Appellants, v. R. A. Benitez and Fanny M. Benitez |
| Court | Missouri Supreme Court |
Appeal from Maries Circuit Court; Hon. Sam C. Blair, Judge.
Affirmed.
L H. Breuer and E. W. Allison for appellants.
(1) The intentions of the parties to a deed, as shown by the entire deed, should govern in its construction; where certain of the words used appear repugnant to the other portions of the deed and to the general intention of the parties, they should be rejected. Gibson v. Bogy, 28 Mo. 478. (2) A general description of land contained in a deed ought to prevail over a description by metes and bounds immediately following it and in ejectment it is not error for the court to tell the jury in the instruction that such is the effect of the deed. Especially ought this to be the ruling, where the boundaries in the general description are fixed by governmental monuments and a natural object, and the boundaries by metes and bounds are obviously erroneous. Patton v. Fox, 179 Mo. 525; Rutherford v. Tracy, 48 Mo. 325; Thompson v. Thompson, 115 Mo. 56; Calloway v Henderson, 130 Mo. 77; Presnell v. Headley, 141 Mo. 187; Whitaker v. Whitaker, 175 Mo. 1. (3) If a contract or a deed is ambiguous the meaning placed upon such instrument by the parties thereto while living is very persuasive in ascertaining their true intent. Carter v. Foster, 145 Mo. 383; Blumenthal v. Blumenthal, 251 Mo. l.c. 706. (4) A boundary may be rejected when it is clear that it was inadvertently inserted and that a tract with different boundaries was intended to be conveyed. Jamison v. Fapiano, 48 Mo. 194. (5) A description of land by governmental subdivisions, prevails over inconsistent erroneous description of quantity in the deed. Pruitt v. Drainage District, 106 S.W.2d 467. (6) By a description of land by subdivision according to government survey "we specify and describe as particularly as if we marked out the boundaries and described each line and specified each corner." Ohlson v. Batterton, 230 S.W. 110. (7) It has been held that a particular description will not limit a grant made certain by a general description, unless it can be clearly ascertained from all the words of the conveyance that such was the intention of the parties. A general description will not be limited by a particular one where the latter follows in the sense of reiteration or affirmation. 18 C.J. 284, sec. 254. (8) A good general grant will never be limited by a subsequent particular description unless it is manifest that this particular description was meant to operate as a limitation; and this intention, that it shall so operate as a limitation, must be definitely expressed in the terms used in the particular description. Note 86 to 18 C.J. 284, sec. 254.
Llyn Bradford and W. D. Jones for respondents.
(1) Where there are two descriptions in a deed, one consistent with a reasonable hypothesis and evident intent of parties and the other rendering it absolutely inoperative, the false or incorrect call will be rejected, and the description applied in light of facts existing at the time. Hubbard v. Whitehead, 121 S.W. 69, 221 Mo. 672. (2) To hold in this case that the widow's dower tract was limited to the northwest quarter of the northwest quarter and 40 acres only as contended by appellants would have the effect of destroying the entire use and value of the premises conveyed as the boundary line would go through the house thereby depriving the widow of the use of the house, the front yard, and all access to Highway 63. (3) It is well settled that fixed artificial monuments such as a street or highway will control over a conflicting call for acreage or courses and distances or other conflicting calls in a description. Grandy v. Casey, 93 Mo. 595; Heirs of Burnham v. Hitt, 143 Mo. 414; Armstrong v. Batterton, 260 S.W. 80, 303 Mo. 220. (4) A description to a river governs over an inconsistent quarter section as given. Palmer v. Wood, 201 S.W. 857. (5) If the other parts of the description are clear, but do not agree with the acreage, the acreage will be rejected, as it is the least persuasive of the elements of a description. Hendrix v. Vivion, 118 Mo.App. 417. (6) While natural monuments are regarded of higher value in determining boundaries than artificial ones, the latter will also control courses and distances. The order of applying descriptions of boundaries is, first, to natural objects; second, to artificial marks; third, to courses and distances given in the deed. Whitehead v. Ragan, 106 Mo. 231. (7) The mention of quantity of acres, after a certain description, as by government subdivisions, is but matter of description, and does not amount to a covenant; and, where such mention of acreage does not appear to be of the essence of the contract, the buyer takes the risk of quantity, if there be no intermixture of fraud. Wood v. Murphy, 47 Mo.App. 539. (8) A statement of the quantity of land supposed to be conveyed, and inserted in a deed by way of description, must yield to natural or permanent objects called for in the conveyance, and it is immaterial that the boundary so ascertained embraces a much larger area than that called for. 9 C.J. 216. (9) After natural and permanent objects, artificial monuments, and marks, unless clearly erroneous, control other and inconsistent calls for boundaries, provided the monuments are mentioned in the deed. 9 C.J. 217. (10) Where a deed describes the land as partly bounded by a river, the river boundary will be adhered to, though it does not correspond with established corners. Shelton v. Maupin, 16 Mo. 124. (11) Where the boundaries of land are fixed monuments, though neither courses nor distances nor the computed contents correspond, the monuments will govern. Campbell v. Clark, 8 Mo. 553. (12) Attention is also called to the fact that the commissioners in their report, after describing the tract set aside for the widow, stated that "the same being by us considered to be 1/3 of the value of the entire tract of land described in plaintiff's Petition . . ." Without the use of the dwelling house and front yard and without access to the highway the 40 acres only comprised within the northwest quarter of the northwest quarter would certainly not be 1/3 of the value of the entire tract of land described in the petition.
Gantt, J. All concur except Clark, J., absent.
Action in two counts: the first to quiet title, the second in ejectment. It involves title to about six acres of land in Phelps County on U.S. Highway 63 and is a part of the N.E. Quarter of the N.W. Quarter of Sec. 23, Twp. 37, N Range 8, W, lying between the west right-of-way line of 63 and the west line of the northeast quarter of the northwest quarter of said section.
Plaintiffs claim title to the six acres under a deed executed by the executor of the will of John Hoffman, deceased. Defendants claim title to the six acres under an admeasurement of dower to the widow of John Hoffman by commissioners appointed by the circuit court. The parties waived a jury and submitted the case on an agreed statement of facts. Judgment for defendants on both counts and plaintiffs appealed. The agreed statement follows:
On February 5, 1941, John Hoffman of Phelps County, Missouri, died testate, owning at the time of his death the following described real estate situate in the County of Phelps and State of Missouri, to wit: all of the Northwest quarter of Section 23, all in Township 37, Range 8, West, containing 160 acres.
It is agreed and stipulated that the said John Hoffman is the common source of title of the tract of land involved in this controversy. By the terms of his will, which was duly filed in the Probate Court of Phelps County, Missouri, on February 7, 1941, his widow, Mary Hoffman, was devised the dower and homestead rights conferred upon her under the statutes of Missouri and the testator's four children by a former marriage, being his only children or heirs at law were devised the remainder of his estate to be shared equally between them subject to the dower estate of the widow. Fred H. Lentz of Rolla, Missouri, was designated in the will as executor, qualified as such, and was granted letters testimentary in the Probate Court of Phelps County, on February 7, 1941. The only children of John Hoffman, all of whom were named in the will as remaindermen, were Herbert A. Hoffman, Arthur Hoffman, Elmer Hoffman, and a daughter, Mrs. Alfred Schumacher.
At the September Term, 1941, of the Circuit Court of Phelps County, Missouri, a proceeding was filed by the executor under the will to set off and admeasure the dower of the widow, Mary Hoffman. In this proceeding the executor was the plaintiff and Mary Hoffman, Herbert A. Hoffman, Arthur Hoffman, Elmer Hoffman and Mrs. Alfred Schumacher were named as defendants, all of whom made default to the action. The Circuit Court designated Emil Mesko, Fred Hertlein and William Bachert as commissioners to set off and admeasure the widow's dower and said commissioners on the 4th day of September, 1941, filed their report in Court, setting out the widow's dower out of the 160 acre tract owned by the said John Hoffman common source of title as aforesaid, at the time of his death, as follows:
That the said widow shall have as her dower the Northwest 40 acres of said tract of land, the same being the Northwest Quarter of the Northwest Quarter of Section 23, Township 37, Range 8 in Phelps County, Missouri, including the buildings, except the small house thereon, which the heirs of the said John Hoffman may remove if they so desire, but said house not to be occupied by them on its present location on the land set aside as the widow's dower; the said tract of 40 acres...
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