Krick v. Thompson

• Decision Date: 16 April 1942
• Docket Number: 37692
• Citation: 162 S.W.2d 240,349 Mo. 488
• Parties: Remi Krick, and Illinois Federation Corporation, a Corporation, Plaintiffs-Respondents, v. Frances C. Thompson et al., Defendants-Appellants
• Court: Missouri Supreme Court

162 S.W.2d 240

349 Mo. 488

Remi Krick, and Illinois Federation Corporation, a Corporation, Plaintiffs-Respondents, v. Frances C. Thompson et al., Defendants-Appellants

No. 37692

Supreme Court of Missouri

April 16, 1942

Rehearing Denied June 3, 1942.

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

Langdon R. Jones for appellants.

(1) Where there is a dispute as to the true boundary line between adjoining landowners, or the line is uncertain and they are both ignorant as to its true location, if they fix and agree upon a permanent boundary line and take possession accordingly, the agreement is binding on them and those claiming under them. Engelbrecht v. Dulle, 92 S.W.2d 150; Journey v. Vikturck, 8 S.W.2d 975; LaHue v Bungenstock, 249 S.W. 402; Lawson et al. v. McNeil, 102 S.W.2d 42; Anderson v. Oil Company, 83 S.W.2d 418; Ann. 63 A. L. R. 1433. (2) However, in any event, on the prayer for reformation contained in defendant's answer, the proof in this case is conclusive, that the prayer for reformation should have been granted, and the deed reformed in accordance with the answer of the defendant. And the trial court so found the facts. Fisher v. Dent, 259 Mo. 86; Dent v. Hobson & Seay, 189 Mo.App. 140; Wage v. Boehm, 220 S.W. 952; Chandler v. Georgia Chemical Works, 105 A. L. R. 837; 44 A. L. R. 100; 26 A. L. R. 492.

Hal H. McHaney for respondents.

(1) Defendant Frances C. Thompson is not entitled to retain possession of and to acquire title to the lands lying south of the county road in the southeast quarter of Section 22, Twp. 17, N., R. 9, E., on the theory of a mutual mistake in the description in the deed given by her to plaintiff Illinois Federation Corporation, and the judgment and finding of the trial court in that regard is correct because: (a) There was no mistake in the description in the deed in question. It was the intention of the parties to convey thereby the same land formerly mortgaged by defendant's grantor, Earl C. Thompson, to plaintiff company, including that part of the southeast quarter of Section 22, Twp. 17, N., R. 9, E., lying south of the road, the same as that part lying north of the road. The defendant testified it was her intention to convey exactly the same lands upon which the company held the deed of trust. The deed of trust included the entire southeast quarter of Section 22, Twp. 17, N., R. 9, E. There was no evidence whatsoever of any mistake made on the part of the parties to said deed of trust. If there were any mistake it was as to the identity of the lands actually described in the deed of trust and conveyed by the deed from defendant to plaintiff, due to the erroneous belief on her part that the county roadway in question was located on the south line of the southeast quarter of Section 22, Twp. 17, N., R. 9, E., whereas said road actually lies north of the south line of the southeast quarter of Section 22, Twp. 17, N., R. 9, E. Such an erroneous belief in no way establishes a mutual mistake sufficient to warrant the reformation of the deed in question. General Refractories Co. v. Sebeck, 44 S.W.2d 60; Tesson v. Insurance Co., 40 Mo. 33; Steinberg v. Phoenix Ins. Co., 49 Mo.App. 264. (b) Inasmuch as the defendant at the time of the conveyance owned lands immediately south of the disputed lands, and inasmuch as the description contained in her deed described all the lands in the southeast quarter of Section 22, Twp. 17, N., R. 9, E., including that part thereof lying south of said road, her continued possession of the disputed lands after delivery of deed to plaintiff was that of tenant or trustee of the grantee, and her possession was strictly subservient to the plaintiff's title. She cannot rely upon such continued possession to establish presumption that plaintiff only intended to receive lands, possession of which was actually transferred to the plaintiff company. Ivy v. Yancey, 129 Mo. 501; DeBernardi v. McElroy, 110 Mo. 650; Brown v. Brown, 106 Mo. 661; Kellogg v. Mullin, 39 Mo. 174. (c) The burden of proof to establish mutual mistake of the parties in the contents of the deed in question was upon the defendant Frances C. Thompson. In this connection mere probability or a mere preponderance of the evidence is not sufficient but it is necessary that a certainty of error be established. Furthermore it is requisite that such error be not unilateral but must be shared in by both of the parties to the transaction. There is no such evidence in this case. Employers' Indemnity Corp. v. Garrett, 38 S.W.2d 1049. (2) Defendant Frances C. Thompson is not entitled to retain possession and to acquire title to the lands lying south of the road in the southeast quarter of Section 22, Twp. 17, N., R. 9, E., on the theory that the county road in question constituted an agreed boundary line between the lands owned by plaintiff and the lands owned by the defendant, and the judgment and finding of the trial court is correct because: (a) To permit such contention is to vary or contradict the terms of her written deed by parol testimony, and would, therefore, do violence to the parol evidence rule. Patton v. Smith, 171 Mo. 231, 71 S.W. 187; Crenshaw v. Crenshaw, 208 S.W. 253; Frisbee v. Scott, 201 S.W. 561. (b) Upon the execution and delivery of the deed by the defendant Frances C. Thompson to plaintiff company, her entire legal estate in the premises described in the deed became vested in the plaintiff company, and her continued possession was presumptively as tenant of the grantee, which, without an explicit disclaimer on her part, would not constitute adverse possession against her own grantee. 2 C. J., 143; Ivy v. Yancey, 129 Mo. 501, 31 S.W. 937; De Bernardi v. McElroy, 110 Mo. 650, 19 S.W. 626; Brown v. Brown, 106 Mo. 611; Kellogg v. Mullen, 39 Mo. 174; Patton v. Smith, 171 Mo. 231, 71 S.W. 187. (c) Under the testimony in the case it is clear that the road location in question was originally established because of a mutual mistake of the parties who laid out and established such road. Such parties believed said location was the true section line, and for such reason located the road thereon. Just as a mutual mistake is never binding on the parties and is sufficient cause to correct a deed, so an agreed boundary line based on a mutual mistake is never binding, and constitutes no basis for estoppel as against either of the parties thereto or their grantees. Ackerman v. Rider, 271 S.W. 743, 308 Mo. 9; Schad v. Sharp, 95 Mo. 573; Kincaid v. Downey, 51 Mo. 552; Lowenberg v. Bernd, 47 Mo. 297. (d) Where a grantor owns lands on both sides of a disputed boundary line such ownership destroys any prior agreement establishing the dividing line of two tracts of land, and the grantee of such a person receiving property by legal description is entitled to receive all property legally described, regardless of prior agreement between prior owners as to a different division line. Patton v. Smith, 171 Mo. 231, 71 S.W. 187; Brummell v. Harris, 162 Mo. 405. (e) A quitclaim deed is just as effective in this regard as a warranty deed. Weisenfels v. Cable, 106 S.W. 1028.

Hyde, C. Bradley, C., not sitting; Dalton, C., concurs.

OPINION

HYDE

This is an action to quiet title to land in Section 22, Township 17, North, Range 9, East, in Dunklin County, with a second count in ejectment. Only the answer of defendant Frances C. Thompson (hereinafter called defendant) is in the record. Her answer denied plaintiff's title and right to possession. Her answer also contained a cross bill in equity seeking reformation of her deed conveying this and other land to plaintiff Illinois Federation Corporation (hereinafter called plaintiff, as the other plaintiff merely took title under tax sales for the Federation) on the ground that there was an agreed boundary line between the land conveyed and other land retained by defendant; and that there was a mutual mistake in the deed if it described land beyond such line. The court found against defendant on the cross bill and entered judgment for plaintiff on both counts. Defendant appealed from the court's decree.

The principal fact question was the location of the section line between Section 22 and Section 27. (The north line of Section 27 and the south line of Section 22.) Defendant claimed that this line was the county road running east from the Little River drainage ditches. Plaintiff claimed and the court found, that the line was south of this road, 470 feet at the west side of the Southeast Quarter of Section 22, and 540 feet wide at the east side of said tract, as located by its surveyor Mr. Spiker. Thus it was found that the county road did not run due east and west, and that about 30 acres of the Southeast Quarter of Section 22 lay south of the county road. This is the disputed tract.

The county road was authorized in 1918. It commenced at the Dunklin-Pemiscot County line in the township east of the one involved in this case. It was authorized to be laid out on the line between Sections across that township until it reached the Deering Ditch, which ran southwest out of that township into the township herein involved. The road there jogged to the north to get across this ditch, then came south again to the line between Sections 24 and 25 of the township herein involved (2 sections east of the sections where the disputed tract is located), and was to run "west along the section lines to intersect the Kennett-Hornersville road at Cotton Plant." These sections were originally surveyed by the United States Government in 1847. However, the township was not completely surveyed then because the "Swamp called Little River" covered all of what is now Section 27, most of what is now Section 22, and a considerable portion of the adjoining sections, being about...