Lacy v. Schmitz, 44410

• Decision Date: 22 June 1982
• Docket Number: No. 44410,44410
• Citation: 639 S.W.2d 96
• Parties: Charles J. LACY, Jr., and Rose N. Lacy, his wife, Appellants, v. Dale E. SCHMITZ and Lilly B. Schmitz, his wife, Respondents.
• Court: Missouri Court of Appeals

Page 96

639 S.W.2d 96

Charles J. LACY, Jr., and Rose N. Lacy, his wife, Appellants, v. Dale E. SCHMITZ and Lilly B. Schmitz, his wife, Respondents.

No. 44410.

Missouri Court of Appeals,

Eastern District,

Division One.

June 22, 1982.

Motion for Rehearing and/or Transfer

Denied Sept. 17, 1982.

Application to Transfer Denied

Oct. 18, 1982.

Steven P. Kuenzel, Politte, Thayer & Kuenzel, Washington, for appellants.

William W. Eckelkamp, Eckelkamp, Eckelkamp & Wood, Washington, for respondents.

CRANDALL, Judge.

Appellants, Mr. and Mrs. Charles J. Lacy, Jr., appeal from an adverse judgment in their suit against respondents, Mr. and Mrs. Dale E. Schmitz. Appellants initiated this action to gain title to a thirty-foot wide roadway by reformation of their deed of conveyance or by virtue of adverse possession. Relief was also sought to have respondents enjoined from interfering with appellants' use, enjoyment, maintenance and improvement of the roadway.

In this court-tried case, the trial judge issued findings of fact and conclusions of law and refused to reform the original roadway deed. Fee simple ownership of the eight-acre tract over which the roadway crosses was vested in the respondents subject to appellants' right to use, for purposes of ingress and egress to their house and for purposes attendant to a single-family farm residence, a certain gravelled roadway as now exists ranging in width from twelve to eighteen feet. Viewed by the standard elucidated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we affirm.

The thirty-foot wide roadway here in question runs north from appellants' farm, passes in front of respondents' house and turns slightly northwest before it meets Missouri State Highway AM. Appellants claim title to this roadway under their deed of conveyance or, in the alternative, by adverse possession. Respondents claim title to the same roadway under their deed of conveyance.

To get a proper perspective of the points raised, we must first trace back the titles of each party to 1911 when Bernard Hanneken purchased the property now owned by both appellants and respondents. In tracing appellants' title, we find that in 1933 Alex Tyler purchased a thirty-foot wide tract of land for roadway purposes from Ben and Anna Hanneken. This strip of land is the subject, in part, of this lawsuit. In 1951, the heirs of Alex Tyler sold their farm along with the "right-of-way" purchased by Tyler to appellants' predecessors in title, John R. and Helen A. Cary. Six years later, in 1957, appellants purchased their farm consisting of approximately 242.31 acres from the Carys. The deed conveyed a "right of ingress and egress over a roadway 30 feet wide, leading through the Southwest quarter of the Southeast quarter of Section 35, Township 43 North, Range 1 East." (emphasis added)

Respondents' title can be initially traced to Bernard and Annie Hanneken when they sold eight acres to George L. and Judith R. Johnson in 1939. That deed contained the following exception: "excepting therefrom, a private road to Tyler." In 1944, the Johnsons sold these eight acres to the respondents' predecessors in title, George and Bessie Tyler. That deed also contained the above exception. In 1976, the respondents purchased the above-mentioned eight acres of land adjoining the appellants' farm from Bessie (Tyler) Halbach. The deed of conveyance again contained the same exception.

The problem arises in appellants' deed, which describes the roadway as being situated in "the S.W. 1/4 of the S.E. 1/4 of Sec. 35, Twp. 43 Range 1 East ...." (emphasis added) The testimony indicated that in 1933, Ben Hanneken owned no land in the SW 1/4 of the SE 1/4, but that all of the real estate owned by him was located in the SE 1/4 of the SE 1/4.

The trial court found that the parties to the original deed of 1933 could not have intended to convey the SW 1/4 of the SE 1/4, and that the deed contained a mutual mistake of fact by those parties. The court went on to find that the parties intended as follows: "Being a tract of land 30' wide situated in the S.E. 1/4 of the S.E. 1/4 of Sec. 35, Twp. 43, Range 1 East."

The appellants, in their first of five points, contend that the trial court erred in failing to reform the original roadway deed. ¹ The general rule with respect to reformation of a written agreement on the ground of mutual mistake was stated in Schneider v. Bulger, 194 S.W. 737, 739 (Mo.App.1917). We note that a court of equity will exercise its powers to reform instruments, and not only as between the original parties, but as to those claiming under them in privity, such as assigns, grantees or purchasers from them with notice of the facts. Robo Sales, Inc. v. McIntosh, 495 S.W.2d 420, 423 (Mo.1973); see King v. Riley, 498 S.W.2d 564 (Mo.1973). However, no reformation will be granted against a bona fide purchaser without notice of the facts. Robo, 495 S.W.2d at 423. The central issue here is whether the respondents were bona fide purchasers for value without notice of appellants' interest in the roadway.

When respondents purchased their property in 1976, there was no deed of record granting a roadway or thirty-foot strip of land through the property. There was a deed recorded, which appellants now seek to have reformed, that described a roadway in a different quarter section. There was evidence adduced that the respondents gave valuable consideration for their property at the time of purchase. Furthermore, expert testimony revealed that the thirty-foot strip of land could not be located from the description of the roadway in the deed even if the deed were to have conveyed property in the SE 1/4 of the SE 1/4 rather than the SW 1/4 of the SE 1/4. There was substantial evidence to support the finding of the trial judge that respondents were bona fide purchasers without notice. We defer to his judgment.

Since we find that reformation does not lie against respondents, we need not address appellants' second point, that the trial court erred in refusing to render the location of the roadway as fixed and definite.

Appellants' third contention, in the alternative, is that title to the thirty-foot wide roadway should be granted to them under the doctrine of adverse possession. As stated previously, the trial court found that respondents were the fee simple owners of the roadway in question, subject only to appellants' right to...