Martin v. Hays

• Decision Date: 07 March 1921
• Docket Number: No. 21653.,21653.
• Citation: 228 S.W. 741
• Parties: MARTIN et al. v. HAYS.
• Court: Missouri Supreme Court

228 S.W. 741

MARTIN et al. v. HAYS.

No. 21653.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, Macon County; V. L. Drain, Judge.

Action by Kate Martin and another against Jasper E. Hays. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions.

C. G. Buster, of Macon, for appellants. Dan R. Hughes and John R. Hughes, both of Macon, for respondent.

HIGBEE, P. J.

This is an action of ejectment. The petition states that in March, 1918, plaintiffs were entitled to the possession of—

"a strip of land and containing 5 ½ acres of land and lying immediately north of the south half of the southwest quarter of the southwest quarter of section 1, township 57, range 17, Macon county, Mo., and being a strip off of the north half of the southwest quarter of the southwest quarter of section 1, township 57, range 17, Macon county, Mo."

The first count of the answer is a general denial. The second count avers that the defendant is "the owner of all of 18 ½ acres off of the north side of the southwest quarter of the southwest quarter." The case was tried to the court, resulting in a finding and judgment for the defendant, from which the plaintiffs appealed. There were no declarations of law asked or given.

The appellants contend that the judgment is not supported by any substantial evidence, and is contrary to all the evidence.

On April 29, 1864, John T. Allin, the common source of title, conveyed "the south half of the southwest quarter and one and one-half acres of land and lying contiguous to the same, extending from east to west across the forty in section one, township fifty-seven, range seventeen, containing one and one-half acres," to Bernard Kennedy. Bernard Kennedy died in the year 1899. Mrs. Kennedy, his widow, died in February, 1912. There was a fence on the north line of the tract sold to Kennedy, whose son, Samuel, testified that his father bought the land up to this fence, and the deed was supposed to be up to the fence. He also testified that the line was agreed upon between his father and Mr. Allin.

The plaintiffs, Kate Martin and Bridget Clark, are heirs of Bernard Kennedy, and derive title to the 2 ½ acres by a sheriff's deed at a partition sale in September, 1912. The evidence is uncontradicted that Bernard Kennedy, his widow, and the plaintiffs had uninterrupted possession of the 21 ½-acre tract with this fence as its north boundary, from April, 1864, to the time of the ouster in March, 1918, claiming title to the fence during all that time. It is agreed that in February, 1890, W. P. Davis conveyed the north 18 ½ acres of, this 40-acre tract to John Evans and his son, Hugh T. Evans. About 1897 or 1898, John Evans conveyed his interest to Hugh T. Evans by a deed in which the 18 ½-acre tract was described as the north half of the southwest quarter of the southwest quarter of section 1. Hugh T. Evans and his wife, on March 23, 1917, conveyed all of the 18 ½ acres off the north side of said 40-acre tract to defendant.

On one occasion, about 1893, John Evans, commonly known as Texas Evans, who with his son Hugh T. Evans, then owned and occupied the land north of the fence, laid claim to the fence as the boundary in a most persuasive and convincing manner. George Martin, one of the plaintiffs, was about to cross the fence to get some water from a spring on the old man's land, when Texas Evans met him with a gun in his hand and said: "Stop. There is the dividing line." Texas Evans and Mrs. Kennedy had some trouble about stock getting over this fence and about keeping it repaired. She told Evans to get on the other side of the fence, and she would stay on her side and take care of it. This was about the year 1895. Hugh T. Evans testified as a witness for the defendant that he and his father, John Evans, bought the north 18 ½ acres from W. P. Davis; that they owned it jointly 7 or 8 years; that he then bought his father's interest and owned it until he sold it to the defendant Hays. Referring to this fence, he further testified:

"There was never anything said about it being a true division line. We took it always as a fence that was between us, and fixed it jointly together, and that way we never had it surveyed to find out how many acres we had there. I purchased the land from my father in 1899, and I never had any agreement with any one with reference to the division line between my land and the Kennedy land."

In November, 1917, Mr. Walker, the county surveyor, at the defendant's request, ran a line from east to west across this 40-acre tract, which defendant claims is the true boundary line. He did this by measuring 18 ½ acres off the north end. He testified that plaintiffs have 21 ½ acres south of this line. Other testimony shows that the west end of the line run by Walker is 1 chain and 48 links south of the old fence at the west end, and one chain and 66 links south of it at the east end. Hays removed the old fence, built a post and wire fence on the line run by Walker, and ousted the plaintiffs from the strip of land lying between the old and the new fence. Hine illæ lachrymæ.

I. The respondent objects that the description in the petition of the 5 ½ acres sought to be recovered is vague, indefinite, and uncertain. His counsel in their brief paraphrase the description in these words: A strip off the south side of the north half of the southwest quarter of the southwest quarter of section 1. They ask: "What was the form of this strip, its length and its width?"

In defendant's answer he asserts that he is the owner of "all of 18 ½ acres off of the north side of the southwest quarter of the southwest quarter of section 1." He undoubtedly means, as every conveyancer would understand, 18½ acres in rectangular form off the north side of the tract. While the description is repetitious and faulty in its syntax, we must remember the ancient and accepted (and wholesome) maxim of the common law: "Mala grammatica non vitiat chartam."

In Livingston County v. Morris, 71 Mo. 603, the description in the petition was:

"All that part of the east half of the northwest quarter of the southwest quarter of section twenty, township fifty-seven, range twenty-four, containing sixteen acres more or less."

This was held to be so vaguely described that it could not be identified. The court, however, referred approvingly to McPike v. Allman, 53 Mo. 551, where the petition described the land as "eighty acres off the south end of the west half of section thirty-one, township fifty-three, range five west." This was held to be a good description.

If it appear that the premises which plaintiffs are entitled to recover are within the boundaries of the description contained in the petition, it is sufficient. Bricken v. Cross, 140 Mo. 166, loc. cit. 170, 41 S. W. 735. The complaint is not insufficient because plaintiffs may have claimed more land than they can prove they are entitled to. 19 C. J. 1108 (87). The description is wholly unlike that in Collins v. Andriano, 264 Mo. 475, 175 S. W. 194, and other cases cited in respondent's brief.

The objection was properly overruled by the learned trial court.

II. The other contention by the respondent is that occupation of land to a fence under the belief that it is the true line, without any intention to claim beyond it, in the absence of an agreement establishing the fence as the boundary, regardless of the fact whether or not it was the true line, is not adverse to the real owner. This is undoubtedly true. Skinker v. Haagsma, 99 Mo. 208, 12 S. W. 659; James v. Devine, 214 S. W. 150. This rule, however, has no application to the facts in this case, the record is barren of any evidence tending to support that theory. There can be no question that a boundary was...