Kempf v. Phillips Pipe Line Co.

• Decision Date: 20 June 1933
• Docket Number: No. 22598.,22598.
• Citation: Kempf v. Phillips Pipe Line Co., 61 S.W.2d 422 (Mo. App. 1933)
• Parties: KEMPF v. PHILLIPS PIPE LINE CO.
• Court: Missouri Court of Appeals

61 S.W.2d 422

KEMPF v. PHILLIPS PIPE LINE CO.

No. 22598.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Rehearing Denied July 3, 1933.

Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.

"Not to be published in State Reports."

Suit by Josephine Kempf against the Phillips Pipe Line Company. From a decree for plaintiff, defendant appeals.

Affirmed.

G. P. Cantrell, of Bartlesville, Okl., and John Haley, of St. Louis, for appellant.

W. F. Stahlhuth, of Clayton, for respondent.

BECKER, Presiding Judge.

Plaintiff filed her bill in equity seeking to set aside and cancel a deed to the defendant for a pipe line right of way across her land. Upon trial of the case there was a decree for plaintiff. Defendant appeals.

Plaintiff's petition alleges that in August, 1930, defendant's agent called upon her seeking a right of way through her farm for a projected pipe line; that the agent represented that the said right of way would be about two and one-half feet wide; that plaintiff relied upon such representation and executed a document prepared by and presented to her by defendant's said agent; that at the time she executed the same it did not contain a description of her land, or the part thereof over which said right of way was to run, but the space in said document for such description was left blank; that after plaintiff had executed and delivered said document to defendant, the defendant wrongfully and fraudulently, and without plaintiff's knowledge and consent, and without authority from her, attached to said document a description of plaintiff's land, and failed therein to define and set out over what part of plaintiff's land said right of way should run, but subjected all of plaintiff's land to said right of way; and further that though plaintiff did not sign said document before a notary public, yet at some time after she had delivered the deed to defendant, her purported acknowledgment was added to the instrument; and that no witness to her signature had signed the document in her presence or with her knowledge or consent, yet thereafter defendant's agent signed his name to the instrument as a witness to her signature, and that the said instrument was then recorded and constitutes a cloud on plaintiff's title.

Plaintiff deposited with the clerk of the court the sum of $9 as a tender to defendant as the consideration (plus interest thereon) received by plaintiff from defendant in the transaction.

The prayer of the petition is that the deed be set aside and for naught held, and the cloud of said deed be removed from plaintiff's title.

The answer, after admitting the ownership of the land by plaintiff, is tantamount to a general denial.

Testimony adduced on behalf of plaintiff tended to show that on August 16, 1930, G. W. Carney called on plaintiff for the purpose of having her execute a right of way deed, granting to defendant an easement over her land for the main purpose of laying a pipe line across the same; that when plaintiff inquired of said Carney how wide the easement would be he indicated, represented, and stated that it would be about two and one-half feet wide; that plaintiff relied on said statements and representations and signed the document introduced in evidence and received and cashed a check for the consideration therein named; that said document, at the time it was signed, did not contain a description of the portion of plaintiff's land over which said right of way would run, but that said document was blank at that point; that plaintiff did not authorize said Carney or any other person to fill in said blank spaces, nor did she authorize any one to insert in said instrument a description of her entire land, so as to subject her entire land to said easement; that there was no notary public present when she signed the instrument, and she, at no time, appeared before a notary for her acknowledgment; that she did not know the notary whose name and certificate appears on said document; that the name "G. W. Carney" appearing at the bottom of said document was not there when she signed the same; and that Mr. Carney did not sign as such witness in her presence or with her consent, and had no authority to sign as a witness.

Plaintiff's evidence further shows that during the early part of the month of January, 1931, she saw the original document in the recorder's office, at which time she discovered that the typewritten description of her entire farm had been inserted in the deed; that this was the first time she saw the document after she had signed the same. The original document was produced and introduced in evidence and shows the description of plaintiff's entire farm as subjected to the easement; that said description is typewritten on a separate piece of paper and is pasted onto the deed over the blank space provided in the deed for the description of the land subject to the easement; that all other blanks in the deed, including plaintiff's...