Martin v. Jones

• Decision Date: 15 December 1920
• Docket Number: No. 21172.,No. 21171.,21171.,21172.
• Citation: 228 S.W. 1051,286 Mo. 574
• Parties: MARTIN et ux. v. JONES et al. (two cases).
• Court: Missouri Supreme Court

228 S.W. 1051

286 Mo. 574

MARTIN et ux. v. JONES et al. (two cases).

No. 21171.

No. 21172.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Motion for Rehearing Denied December 30, 1920.

Motion to Transfer to Court in Banc Denied March 7, 1921.

Appeal from Circuit Court, Montgomery County; Ernest S. Gantt, Judge.

Action by Robert L. Martin and wife against Porter Jones and wife and others. From the decree, plaintiffs and defendant Jones appeal. Reversed and remanded, with directions to set aside decree and to enter new decree in conformity with the opinion.

Plaintiffs, Robert L. Martin and wife, brought this action in the circuit court of Lincoln county, Mo., on July 14, 1917, and it was transferred on change of venue to Montgomery county, Mo., and tried there. They sought to reform and correct a deed made by Porter Jones and wife to them for certain lands located in Lincoln county aforesaid. They also sought to reform and correct a deed, in respect to the same land, from Gladney to Jones, and also to reform and correct a deed as to same land from Briscoe to Gladney.

It is alleged, and the undisputed facts disclose, that each of the three deeds above mentioned, through mistake and oversight, failed to convey the southeast quarter of lot No. 2 of the northeast quarter of section 4, township 49, range 2 east, in Lincoln county, Mo., which should have been contained therein. Plaintiffs likewise sought to recover from Jones the reasonable value of 40 acres of land, which they claim to have bought from Jones, and which he failed to convey and deliver to them.

Jones denied plaintiffs' right of recovery. admitted that the above land in lot 2 should have been inserted in his deed to plaintiffs, and by way of answer to plaintiffs' case alleged that the land hereafter mentioned in lot, 1 of the northwest quarter of section 3, contained in his deed to plaintiffs, was inserted there through mutual mistake, and asks that said deed be corrected so as to exclude said 40 acres. The answer of Jones also contained a cross-bill against defendant Gladney, in which he seeks to recover from Gladney the reasonable value of 40 acres of land, which he claims to have bought from Gladney, and which the latter did not convey and deliver to him.

Gladney answered plaintiffs' case, and admitted that his deed to Jones should contain the southeast quarter of lot No. 2 of the northeast quarter of section 4 aforesaid, which was omitted therefrom through mutual mistake. He also alleged that in his deed to Jones, through mutual mistake, the west half of lot 1 of the northwest quarter of section 3, township 49, range 2 east, was erroneously inserted therein, and prays for the reformation of said deed by striking therefrom said 40-acre tract.

The trial court reformed and corrected the respective deeds from Briscoe to Gladney, from Gladney to Jones, and from the latter to plaintiffs, so as to have the same contain the southeast quarter of lot No. 2 of the northeast quarter of section 4 aforesaid. It was conceded by all the parties that this correction should be made.

The trial court allowed a correction of the deed from Jones to plaintiffs by striking therefrom the 40 acres in lot 1 aforesaid, and refused to allow plaintiffs any damages on account of the failure of Jones to convey to them 40 acres, which they claim to have purchased and paid for, but did not get. From this branch of the case plaintiffs appealed to this court.

The trial court, in its decree, permitted a correction of the deed from Gladney to Jones, so as to strike therefrom the 40 acres in lot 1 aforesaid, and refused to give Jones a judgment against Gladney for 40 acres which he claimed to have bought and paid for, but did not get. From this branch of the case, Jones appealed.

The case is pending in this court upon the cross-appeals of plaintiffs and Jones, as shown by the records in 21171 and 21172. Both cases have been consolidated, and will be disposed of as a single case.

In order to avoid repetition, we will consider the remainder of the case in the opinion.

Derwood Williams, of Troy, S. S. Nowlin, of Montgomery City, and Pearson & Pearson, of Louisiana, Mo., for appellants Martin.

Sutton & Huston, of Troy, and Rosenberger & Dowell, of Montgomery City, for appellant Porter Jones.

Frank Howell, of Troy, William 0. Hughes, of Montgomery City, and Creech & Penn, of Troy, for respondent William A. Gladney.

RAILEY, C. (after stating the facts as above).

1. This is a proceeding in equity, brought by plaintiffs against all of the defendants, to quiet and perfect their tide, by the reformation and correction of a deed from George W. Briscoe and wife to Wm. A. Gladney, and to reform and correct a deed from Wm. A. Gladney and wife to Porter Jones, and to reform and correct a deed from Porter Jones and wife to plaintiffs. In each of the three deeds just mentioned, the grantors therein intended to convey, and contracted to convey, to their respective grantees the southeast quarter of lot No. 2 of the northeast quarter of section 4, in township 49, range 2 east, in Lincoln county. Mo., but, through oversight and mutual mistake, each of said deeds failed to describe and include the land supra, which should have been included therein. The above land is described in some portions of the record as the south half of east half of lot No. 2 of the northeast quarter of section 4, aforesaid, but both descriptions cover the same land. It is conceded, by all the parties to this action, that the above deeds should be reformed and corrected, so that each should contain the land above described. The trial court reformed and corrected said deeds as above indicated, and its ruling end decision in respect to said matter is hereby approved.

2. Plaintiffs allege, and the evidence shows, that they contracted to purchase from Porter Jones 180.40 acres of land in Lincoln county, Mo., feu the agreed consideration of $5,500, which was paid to Jones by the execution and delivery to him of a deed to 160 acres of land in Lincoln county, Mo., described as follows: All of the southwest quarter of section 14, in township 48, of range 2 west, and also by the payment to Jones of $1,500 in cash. It further appears from the evidence that Jones and wife, on January 3, 1917, executed and delivered to plaintiffs a warranty deed, with general covenants of warranty, and attempted to convey therein 180.40 acres of land in Lincoln county, Mo., to plaintiffs for the expressed consideration of $6,000, but for the actual consideration of $5,500, as heretofore stated. We find from the evidence that possession was delivered to plaintiffs of all the land described in said deed, including the southeast quarter of lot No. 2 of the northeast quarter of section 4, in township 49, of range 2 east, in Lincoln county, Mo., except the west half of lot No. 1 of the northwest quarter of section 3, in township 49, of range 2 east, in said county, containing 40 acres of land, which said Jones and wife did not own, and to which they had no title. In other words, we find from the evidence that under the written contract between plaintiffs and Jones, read in evidence and described in petition, and by the terms of the warranty deed from Jones and wife to plaintiffs, the latter paid Jones for 40 acres of land which he did not convey or deliver to them.

We are of the opinion from the evidence before us that plaintiffs are entitled to recover, under the contract and warranty deed aforesaid, the reasonable value of the 40 acres they did not receive, which we find from the evidence is $1,222.20, and which should bear interest at the rate of 3 per cent. per annum from January 6, 1917, until paid; and which said sum of $1,222.20, with interest as aforesaid, should be declared a lien on the 160 acres aforesaid, conveyed by plaintiffs to Jones, subject to the deed of trust on said land made by Jones and wife in January, 1917, to Charles Martin, as trustee for George McGregor.

3. Defendants Jones and wife in their answer and cross-bill allege, and the evidence shows, that they did not own the west half of lot 1 of the northwest quarter of section 3, township 49, range 2 east, as aforesaid; that through mutual mistake said land was described in the deed from Jones and wife to plaintiffs aforesaid, when it should not have been included therein.

Having required defendant Jones to pay the damages aforesaid for the loss of 40 acres which he did not convey to plaintiffs, as required by the contract and deed aforesaid, the warranty deed from Jones and wife to plaintiffs, bearing date January 6, 1917, should stand reformed and be corrected, so that the west half of lot No. 1 of the northwest quarter of section 3 aforesaid shall be excluded therefrom, upon the payment of the judgment to plaintiffs aforesaid.

The foregoing disposes of the controversy between plaintiffs on the one hand and defendants Jones and wife on the other. We will next proceed to consider the controversies between defendants Jones and wife and Wm. A. Gladney and wife.

4. Defendants Gladney and wife challenge the jurisdiction of the circuit court, and incidentally of this court, to determine in this action the question as to whether Jones and wife can recover from Gladney the reasonable value of the 40 acres which Jones bought, and which Gladney failed to deliver and convey to him.

In considering the question of jurisdiction, we find that plaintiffs sued Gladney, as well as Jones, for the purpose of having the deeds from Gladney to Jones, and from the latter to plaintiffs, reformed and corrected so as to include the southeast quarter of lot No. 2 of the northeast quarter of section 4, township 49, range 2 east aforesaid. The circuit court, therefore, upon the appearance of Gladney and Jones and wife, to plaintiffs' action, acquired jurisdiction over the persons of Gladney and Jones. It had likewise jurisdiction over the subject-matter of the action, and...