Luker v. Moffett

• Citation: 38 S.W.2d 1037,327 Mo. 929
• Decision Date: 21 May 1931
• Docket Number: 28553
• Parties: Gilbert N. Luker and Mary L. Luker, Appellants, v. Mark H. Moffett et al.; Augusta R. Catalina, Appellant
• Court: United States State Supreme Court of Missouri

38 S.W.2d 1037

327 Mo. 929

Gilbert N. Luker and Mary L. Luker, Appellants, v. Mark H. Moffett et al.; Augusta R. Catalina, Appellant

No. 28553

Supreme Court of Missouri

May 21, 1931

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Affirmed.

Milton Schwind for plaintiffs.

The decree of the trial court finds as a fact that the descriptions in the separate conveyances to plaintiffs and to appellant were both erroneous, and that the error was shown in the evidence in such a way as to give to the court jurisdiction in equity to correct the mistake and to shift the dividing line from that which was made by the two deeds when read together in connection with the plat on file, to a line marked by the center of the driveway as it existed. Plaintiffs on this appeal neither affirm nor deny the truth of the contention of appellant, that the facts in the record are inadequate to make a case of mistake giving equity jurisdiction to reform. Instead of granting to plaintiffs the relief which they demanded in their petition, the decree gives to plaintiffs title which if the same had been incorporated in their deed from the defendant, this controversy would never have arisen. But it is plain that plaintiffs cannot anticipate the decision of this court on the appeal of appellant Catalina. They, therefore, do not wish to be in the attitude of consenting to an affirmance of this judgment, and urge that whatever may be the views of this court of the pending appeal by the appellant, such views so expressed shall save any rights in plaintiffs for whatever remedy they may have against their grantor, the respondent herein.

Walter R. Barnes for appellant Augusta R. Catalina.

(1) Inasmuch as an easement by its nature is servient and subject to extinguishment by cessation of use, or by operation of law, any equity in plaintiffs to an easement in the existing driveway could have been subserved without the deprivation of appellant's fee title. 19 C. J. 943. (2) The burden was on plaintiffs and defendant to prove the mistake in appellant's deed. Parker v. Van Hooser, 142 Mo 621. (3) The evidence required by the rule to show mistake must be most clear and convincing. Judson v. Mullinax, 145 Mo. 630; Koontz v. Owens, 109 Mo. 1; State ex rel. Frank v. Admr. etc., 51 Mo. 98; Robinson v. Korns, 250 Mo. 663. (4) The burden was on plaintiffs and defendant to show by cogent proof that the mistake claimed in appellant's deed was mutual. Clark v. Transfer Co., 127 Mo. 255. (5) Where the description in a deed calls for designated land by reference to a plat thereof equity will not reform on the ground of mistake. Clark v. Transfer Co., 127 Mo. 255. (6) The judgment in favor of plaintiffs is not responsive to the issue presented by the petition. State v. Modlin, 197 Mo. 376; Schneider v. Patton, 175 Mo. 684, 723. (7) The decree granting to plaintiffs a fee title in property for driveway purposes cannot be sustained on the ground of necessity, the evidence failing to show that there was not another means of access. Bussemeyer v. Jablonsky, 241 Mo. 681.

Woodruff & Gard for respondent Moffett.

(1) The findings of the lower court were against the plaintiffs and in favor of defendant Moffett on his answer and cross-petition, and the decree of the court granting reformation to defendant Moffett of the deeds in question is fully supported by the pleadings. Burns v. Realty Co., 11 S.W.2d 71; Ezell v. Peyton, 134 Mo. 484. (2) Defendant Moffett has sustained the burden of proving mutual mistake of fact, and such mistake is established by clear, convincing and cogent proof. Kidd v. Brewer, 317 Mo. 1047, 297 S.W. 960; Ezell v. Peyton, 134 Mo. 484; Henderson v. Beasley, 137 Mo. 199; Harding v. Wright, 138 Mo. 11; Bartlett v. White, 272 S.W. 944; Hagman v. Shaffner, 88 Mo. 24; Sicher v. Rambousek, 193 Mo. 113. (3) Appellant Catalina purchased with notice, both actual and constructive, of the error in prior deeds which failed to correctly describe the land intended to be conveyed, and the court was justified in decreeing reformation as to her the same as if she had been a party to the mistake. Kidd v. Brewer, 317 Mo. 1047, 297 S.W. 963; Mathis v. Hemingway, 24 F.2d 951; Hagman v. Shaffner, 88 Mo. 28; Harding v. Wright, 138 Mo. 11; Sicher v. Rambousek, 193 Mo. 113; Cross v. Watts, 206 Mo. 373; Freeman v. Moffitt, 112 Mo. 280; Mason v. Black, 87 Mo. 329; Adams v. Gossom, 228 Mo. 566; 39 Cyc. 1713. (4) The deeds sought to be reformed contained an express grant of easement, and to sustain the decree on the theory of mutual mistake it is not necessary to apply the principles of implied or constructive grant of easement on the ground of necessity, though the evidence shows conclusively that the existing driveway was a necessary appurtenance as a means of access to and in the use and enjoyment of plaintiffs' property. Rhodes v. Outcalt, 48 Mo. 367.

OPINION

Frank, J.

Appellants Lukers and appellant Catalina own adjoining residence properties fronting on the west side of the Paseo, one of the principal boulevards in Kansas City, Missouri. There is a concrete driveway between the two houses which extends from the street in front to a double garage located on the rear of the two properties. Lukers' property is north of and adjoining Catalina's. The right to maintain the garage at its present location and the ownership of and right to use the concrete driveway are the questions involved in this action. Respondent Moffett, from whom Lukers purchased their property, contends that the center line of the concrete driveway is the dividing line between the two properties, and that Lukers and Catalina each own one-half of said garage and driveway, and that they each have an easement over and right to use the other party's one-half of said driveway.

In July, 1924, Catalina, through her attorneys, notified Lukers that they were infringing upon their easement rights by maintaining a garage on the space reserved for a driveway, and if said garage was not removed at once, legal proceedings to that effect would be instituted. In November of the same year the same attorneys notified Lukers that the concrete driveway was located entirely on Catalina's property and that they would not be longer permitted to use said driveway. The description in the deeds by which the parties acquired these properties, as well as two surveys, one made at the request of Lukers, the other at the request of Catalina, all show that practically the entire driveway is located on the property described in Catalina's deed.

When Lukers discovered this condition they brought this suit, not against Catalina, but against respondent Moffett, from whom they purchased the property, asking that Moffett's sale and conveyance of the property to them be rescinded and cancelled on the alleged ground that Moffett misrepresented the lines of property to them and fraudulently represented to them that the dividing line between the two properties was the center line of the concrete driveway between the two houses.

Moffett answered denying the alleged fraud, and pleading, in substance, that the center line of the concrete driveway was the dividing line between the two properties; that he and his predecessors in title owned and claimed to own one-half of said driveway and garage, together with an easement over the other one-half of said driveway, and enjoyed the uninterrupted possession and use thereof until shortly before this suit was brought; that it was his purpose and intention to convey same to plaintiffs, but due to a mutual mistake of the parties to said deed, as well as the mutual mistake of the parties to the prior deeds in the chain of tile, defendant's deed to plaintiff did not correctly describe the land intended to be conveyed so as to make the center line of the driveway the dividing line between the two properties. Moffett's answer further alleges that Catalina bought the adjoining property with knowledge and notice of the mistake in said deeds. The prayer of the answer is that the mistake in said deeds be corrected and the deeds be reformed so as to vest in plaintiffs, their heirs and assigns, the legal title to the land occupied by the north half of said driveway and the north half of said garage building, and to a permanent easement for private driveway purposes, and for the support of the north half of said double garage in, upon and over the land occupied by said driveway.

Appellant Catalina was made a defendant, and answered asking that she be decreed to be the owner of an easement over and along the south four feet of the land described in Lukers' deed and that Lukers be permanently enjoined from using said four-foot strip other than for a driveway, that they be permanently enjoined from using any land described in her deed, except the north four feet thereof for a driveway, and that they be permanently enjoined from using any part of said garage, and for any other relief to which defendant might be entitled. Defendant Moffett replied to this answer.

The pleadings of all the parties are quite lengthy. Their sufficiency is not questioned, so we will treat them as properly presenting the issues.

The chancellor refused to set aside the sale and conveyance to plaintiffs as prayed for in their petition, but decreed reformation of the deed in accordance with the prayer of defendant Moffett's answer. Plaintiffs and defendant Catalina both appealed.

The facts which, in our judgment, determine the issue presented, are as follows:

C. A Price Investment Company, a corporation, owned a plot of ground fronting on the west side of the Paseo, a principal boulevard in Kansas City, Missouri. This plot of ground was divided into three parcels designated as the east 122 feet of lots 7, 8 and 9 of a...