Korneman v. Davis

• Decision Date: 02 March 1920
• Parties: HENRY C. KORNEMAN, Appellant, v. JOHN E. G. DAVIS et al
• Court: Missouri Supreme Court

219 S.W. 904

281 Mo. 234

HENRY C. KORNEMAN, Appellant, v. JOHN E. G. DAVIS et al

Supreme Court of Missouri, First Division

March 2, 1920

Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Reversed and remanded.

W. S Herndon, J. M. Johnson and Henri L. Warren for appellant.

(1) The solution of this controversy turns upon the construction of the deeds from Thomas P. Jones to his daughter and the subsequent deed in partition from the sheriff to plaintiff. In construing the first mentioned deed, the primary task is to ascertain the true intention of the grantor, and unless there be found some ambiguity or uncertainty with respect to the description of the land conveyed, resort cannot be had to parol evidence of statements and acts of the grantor to ascertain such intention. 2. Devlin on Real Estate (3 Ed.) p. 2025; Long v. Timms, 107 Mo. 512; Weissenfels v. Cobel, 208 Mo. 515; 9 C. J. 158; 17 Cyc. 618; Long v. Wagoner, 47 Mo. 178; Heady v Hollman, 251 Mo. 633; Warne v. Sorge, 258 Mo. 165; 18 C. J. 262; Elsea v. Smith, 273 Mo. 396; Eckle v. Ryland, 256 Mo. 440; Howell v. Sherwood, 242 Mo. 536; O'Brien v. Ash, 169 Mo. 283. (2) Where the description of the land in the deed when considered in the light of the physical conditions of the subject-matter as referred to therein is open to two constructions -- one clear, definite and certain, and the other ambiguous, indefinite and uncertain -- the clear and definite meaning will be taken as expressive of the real intention of the grantor. 9 C. J. 152, 208 and note 77; Hubbard v. Whitehead, 221 Mo. 672; 1 Greenleaf on Evidence (16 Ed.), sec. 605 L; 18 C. J. 217. (3) Shoal Creek is a natural monument. It completely traversed the sixty-acre tract of the grantor. (4) Another rule of construction of a deed is a call for quantity. When others calls in a deed will not aid the court, then a call for quantity will be used to ascertain the true intention of the grantor before parol evidence of his intention can be resorted to. Davis v. Hess, 103 Mo. 31; 9 C. J. 171, sec. 30; 9 C. J. 163, sec. 44 at p. 176, p. 228; Behert v. Myers, 240 Mo. 58; Cole v. Mueller, 187 Mo. 638. (5) Considering the relationship of father and daughter, which existed between the grantor and grantee, the fact, if it be a fact, that the father allowed the daughter to take timber from the disputed tract for certain specific purposes would not constitute evidence of ownership or claim of ownership to the disputed tract or of an intention to include it in the grant to his daughter. 18 C. J. 261; Miller v. Miller, 91 Kan. 1; Davis v. Hardin, 1 Ky. L. 165; Hubbard v. Hubbard, 140 Mo. 305.

Wm. Henry and Frost & Frost for respondent.

(1) If there is any doubt as to the meaning or application of the term "south of Shoal creek" as employed in the deeds, the meaning and application given by the parties who used them should prevail. Fetley v. McElmurry, 201 Mo. 393; St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121; Rose v. Corborating Co., 60 Mo.App. 32; Richardson v. C. & A. Ry. Co., 62 Mo.App. 5; Berncro v. Real Estate Co., 134 Mo.App. 299. Dobbins v. Edmonds, 18 Mo.App. 315; Morey v. Feltz, 187 Mo.App. 663; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 67; Pub. Co. v. McNichols, 170 Mo. 735. (2) Where all the parities have acted on a particular meaning of an agreement or contract there is no better mode of ascertaining the true meaning than by their acts. Union Depot Co. v. Ry. Co., 131 Mo. 305. (3) The suit for the partition of the lands of Thomas P. Jones and the proceedings and sale therein, did not have the effect to convey any title other than that which remained in his heirs after his death. Powell v. Powell, 267 Mo. 125; Jelley v. Lamar, 242 Mo. 50; Whitsett v. Whitsett, 159 Mo. 25; Propes v. Propes, 171 Mo. 416.

SMALL, C. Brown and Ragland, CC., concur.

OPINION

SMALL, C.

Appeal from the Clinton County Circuit Court. Suit in ejectment for four and a fraction acres of land. Judgment for defendants. Plaintiff appeals. Plaintiff claims title by sheriff's deed under decree in partition of certain lands in said county belonging to the widow and heirs of Thomas Jones, deceased. He died on the 9th of December, 1915, intestate, leaving surviving him, his widow, Nancy T. Jones, his four sons, William M., James L., Charles G. and Harrison Jones, and two daughters, Susan B. Kennedy and Zelleta Heflin. On March 12, 1914, in consideration of one dollar and love and affection, said Thomas Jones executed a warranty deed conveying to his daughter Susan B. Kennedy land in said deed described, as follows:

"The following described lots, tracts or parcels of land, lying, being and situate in the County of Clinton and State of Missouri, to-wit: That part of the east half of the south east quarter of Section Eleven, Township Fifty-six, of Range Thirty, lying south of Shoal Creek, containing about thirty acres.

"Recital, The grantors herein reserving unto themselves or the successors thereof a life estate in the lands hereby granted, and it is further provided that this conveyance is made on the express condition that if the grantee herein attempts to alien, sell or convey the lands granted or place any lien thereon during the life of the grantors herein, or either of them, without their written consent duly acknowledged before a notary public the lands herein shall revert to and the title shall unconditionally vest in the grantors, their heirs and assigns."

At the time this deed was executed, said Thomas Jones owned the south three-fourths of the said east half of the southeast quarter of said Section Eleven. The judgment in partition was rendered at the April Term, 1917, of the said court. The property was sold at sheriff's sale in partition September 24, 1917. The tract purchased by plaintiff in his sheriff's deed is described as follows:

"All that part of the south three-fourths of the east half of the southeast quarter of Section Eleven, in Township Fifty-six of Range Thirty lying north of Shoal Creek, and containing thirty acres more or less."

The sheriff's deed was dated and duly acknowledged in open court on October 2, 1917. Upon receiving his deed, the plaintiff proceeded to erect a fence on the south and east sides of the land, inclosing the tract in controversy, when defendant Davis appeared and tore the fence down. He was accompanied by the "silent sentinel of the fire-side" -- the family shotgun -- and suggested the propriety of "blowing a hole" through one of plaintiff's boys, so the boy testifies, "big enough to crawl through."

A plat of said south three-fourths of said half-quarter section, made by a surveyor, witness for plaintiff, was introduced in evidence, of which the following is a copy so far as it shows the location and course of Shoal Creek in and through the said tract:

[SEE ILLUSTRATION IN ORIGINAL]

The land in controversy is the shaded part in the bend of Shoal Creek in the north half of the tract. The plaintiff claims that he obtained title to it by virtue of his sheriff's deed under the sale in partition, and the defendants claim title to it by virtue of a deed from Susan B. Kennedy and husband, dated October 23, 1917.

Plaintiff's surveyors further testified that the part of the tract shown on the plat south of the creek, where it runs irregularly through the tract from west to east, contained 29 acres and 97 rods and the part north of said creek, including the part in controversy, contained 27 acres and 108 rods. That the tract in controversy contained 4 acres and 133 rods.

There was evidence pro and con to the effect that before the sale in partition took place an announcement was made to all bidders that Mrs. Kennedy owned the tract in controversy, but the sheriff, never-the-less, offered and sold the land to plaintiff, as described in his sheriff's deed.

The partition proceedings to which all the Jones heirs, including Mrs. Kennedy, were parties, included several different tracts, and the judgment therein, after reciting them all, stated they contained "264 acres more or less." Giving the other tracts the acreage they were entitled to, as regular Government subdivisions, the plaintiff's tract must in said judgment have been estimated as containing "30 acres more or less," as stated in the deed of the sheriff to the plaintiff.

There was evidence that Harrison Jones one of the sons, was in possession of the whole 60-acre tract under some sort of a verbal arrangement with his father, when the deed to Mrs. Kennedy was made, and that he refused to give up possession until sometime in December 1914, when his father paid him $ 100 -- he says, to pay for some clearing he had done, and other witnesses say, to surrender possession to his sister, Mrs. Kennedy. There is evidence that Mrs. Kennedy then made a verbal lease to her brother Charles of all of her property, intending to include the property in question therein, and that he afterwards made a verbal lease thereof to the defendant Davis. There also arose a controversy as to payment for some walnut logs, and there is testimony that the father paid Mrs. Kennedy $ 33.33 for logs cut from the property in question. Charles Jones and others testify to this. But, according to Harrison Jones, this money was paid her for logs cut on her land further south, about which there is no dispute. After December, 1914, and during the father's life, some timber was cut from the land in question to make lumber for an ice house, which Mrs. Kennedy built on another tract of ground. Also other timber cut off by her. There was no fence around the ground conveyed to Mrs. Kennedy to separate it from the reminder of the tract. Charles Jones had charge of the rest of the tract for his father, and there was evidence introduced by de...