Langford v. Welton

• Decision Date: 02 April 1932
• Docket Number: No. 30116.,30116.
• Citation: 48 S.W.2d 860
• Parties: LANGFORD v. WELTON.
• Court: Missouri Supreme Court

48 S.W.2d 860

LANGFORD v. WELTON.

No. 30116.

Supreme Court of Missouri, Division No. 1.

April 2, 1932.

Appeal from Circuit Court, Ripley County; Chas. L. Ferguson, Judge.

Suit by J. K. Langford against Ella E. Welton. Decree for defendant, and plaintiff appeals.

Affirmed.

Chas. D. Butler, of Doniphan, for appellant.

Geo. D. Sloan, of Doniphan, for respondent.

STURGIS, C.

Ejectment in conventional form for land described in the petition as that part of the south half of lot 2 of the southwest quarter of section 31, township 24, range 1, beginning at the northwest corner of said tract, thence south 20 rods, thence east 40 rods, thence north 20 rods, thence west 40 rods to beginning, which would contain about 5 acres. The answer is a general denial coupled with an averment that defendant is the legal and equitable owner and claims title to that part of the southwest quarter of said section, beginning at the northwest corner of the southwest quarter of the southwest quarter (which is the same as the south half of lot 2), thence south 21 rods, thence east 15½ rods, thence north 21 rods, thence west 15½ rods to the beginning, which contains about 2 acres, and is the west part of the 5-acre tract sued for. This will be designated as tract A. This is the tract of which the evidence showed defendant had possession, and at the trial plaintiff only claimed the 2-acre tract. The contest is over this 2-acre tract only.

As to this tract, the defendant, by answer, interposed the statute of limitation of ten years. The defendant also set up an equitable defense in that certain deeds made by successive owners of the tract of land adjoining this tract A on the north, which we will designate as tract B, to wit, the south half of the north half of lot 2 of the southwest quarter of said section 31, were so drawn by the scrivener, through mistake in the description, as to include this 2-acre tract in dispute; that this mistake was mutual and neither the grantors in such deeds sold or intended to convey this tract A, but tract B only; nor did the grantees buy or intend to have conveyed to them respectively this 2-acre tract A, and none of such grantors had possession, and none of such grantees took possession or claimed title thereto; that plaintiff acquired his claimed title to this tract A in connection with his title to the adjoining land, tract B, with full knowledge of the fact that the land in question, tract A, was not in the possession or claimed by the grantors or grantees in such deeds constituting plaintiff's chain of title.

By way of explanation, tract A in dispute is the west 2 acres of a 5-acre tract off the north end of the south half of lot 2 of the southwest quarter of said section 31, as described in the petition. This tract is in the suburbs of a small village and had a dwelling house and improvements on it and was inclosed by a fence. No other land was used or went with this tract. Tract B was a 5-acre tract adjoining tract A on the north and was the south end of the north half of lot 2 of said section. It also had a house and improvements on it and was inclosed by fences. Other lands, particularly the north half of lot 1 of the southwest quarter of same section, was used and went with this tract, constituting in all a tract or farm of 70 or 71 acres. There were separate chains of title, commencing many years ago, to tract A and tract B, except that plaintiff's chain of title to tract B in later years included tract A also. This, the defendant claims, was purely by mistake, and all the evidence shows that there was never any conflict of possession, nor was there common possession. Until this suit was brought, no owner and possessor of tract B had, or claimed the right of, possession of tract A.

By his reply, the plaintiff denied the new matter of the answer and alleged that one of the deeds constituting plaintiff's chain of title is a deed dated December 28, 1921, from the defendant, who was a former owner of tract B, conveying the land in dispute, tract A, to I. W. Landis, from whom plaintiff acquired title by mesne conveyances — Landis to Dale and Dale to Langford, April 10, 1926.

This suit was commenced December 28, 1928, and was tried to the court without a jury on March 23, 1929. The court and parties treated the case as one in equity, and the court entered a decree adjudging the legal and equitable title to this 2-acre tract A to be in defendant, and that plaintiff has no right, title, or interest in said land, and that he be debarred from claiming such. The plaintiff has appealed.

It will not be necessary to set out or take into account all the many deeds put in evidence. The court incorporated in his decree a finding of facts that on the 21st day of January, 1913, J. S. Woodring was the owner of the land lying on the north of and adjoining the north line of the south half of the southwest quarter of section 31, township 24 north, range 1 west, designated as tract B, and that on said date he sold and conveyed said land to O. C. Woodring; that on the 25th day of May, 1915, O. C. Woodring conveyed said land to J. Ritterbush by warranty deed, duly recorded; that on the 11th day of July, 1916, Ritterbush conveyed said land to this defendant, Ella E. Welton, by warranty deed; that on the 28th day of December, 1921, this defendant conveyed said land to I. W. Landis by warranty deed; that on the 11th day of December, 1923, I. W. Landis conveyed said land to M. R. Dale by warranty deed.

The court further found that by mistake of the scriveners the land conveyed in said deeds was incorrectly described (so as to include tract A), and that the mistakes were mutual, and that it was not the intention of the parties to convey any land on the south side of the line dividing the southwest quarter of section 31 (tract A is south of the dividing line). The court further found that the lands described in plaintiff's petition and by defendant's answer and mentioned in the evidence were never claimed by any of the grantees in the deeds above mentioned and set out and were never in possession of any of said parties or their grantees. The court further found that plaintiff had knowledge, both actual and constructive, of the mistakes in the descriptions in the deeds mentioned and set out herein before he purchased the land lying on the north of the center line of said southwest quarter (tract B), and that he took the title to the land in litigation (tract A) with the full knowledge of the incorrectness of the descriptions of the land in said deeds, and the court found the issues for the defendant.

The other deed under which plaintiff claims is a deed from M. R. Dale to plaintiff, J. K. Langford, April 10, 1926, which conveys tract B and includes tract A in the description.

The above finding of the court is clearly supported by the evidence. The deeds which the court found to incorrectly describe the lands intended to be conveyed, and which were not intended to convey the 2 acres in question, tract A, were made by parties who owned tract B. Thus the first deed mentioned in the decree, that of Woodring to Ritterbush dated May 25, 1915, conveyed the north half of lot 1 (of the southwest quarter) in section 31, township 24, range 1; the south half of lot No. 2; also a part of lot No. 3 described by metes and bounds as follows: Commencing at the northwest corner of the south half of lot No. 3, in section 31, township 24, range 1, thence north on the...