Martin v. Kitchen
| Decision Date | 30 March 1906 |
| Citation | 93 S.W. 780,195 Mo. 477 |
| Parties | KATE MARTIN et al. v. KITCHEN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.
Reversed and remanded (with directions).
Kitchen & Woody and Mozley & Wammack for appellants.
(1) The deed of trust, and the trustee's deed based thereon offered by plaintiffs, should have been excluded by the court for the reason that they describe no property that could be located or identified from an inspection of the instruments. While there seems to no technical rule in regard to description of lands in a conveyance, yet it is always held that the description must be contained in the instrument or its references with such certainty that the land can be located and ascertained from it. Brown v. Walker, 11 Mo.App. 226, 85 Mo. 262; Blow v. Vaughn, 105 N.C 198; 1 Ballard's Annual on Law of Real Estate, 165. The test in the case at bar is, could a competent surveyor have taken the description contained in the deed of trust and from it have located the property with certainty? We contend that he could not for the reason that the proof shows there are several sections in Stoddard county that answer to the same general description, "north of Castor river," and he could not tell from the instrument which section was designated in the deed. The trust deed, and the trustee's deed, are absolutely void and inoperative as conveyances because of the omission of the township and range from the description of the lands attempted to be described in said instruments. "The courts never permit parol evidence to be given, first to describe the land, and then apply the description." Mudd v. Dillon, 166 Mo. 120; Haughton v. Sartor, 71 Miss. 357; 3 Ballard's Law Annual, 247. (2) The defects in the deed under consideration are patent, and resort canot be had to parol or otherwise extrinsic evidence to identify and make certain the land conveyed. Mudd v. Dillon, supra; Haughton v. Sartor supra; Campbell v. Johnson, 44 Mo. 247; Jennings v. Brizeadine, 44 Mo. 332; King v. Fink, 51 Mo. 209. (3) Defendants purchased the land without notice of plaintiffs' claim of title, and in the absence of actual knowledge on the part of defendants of plaintiff's claim, the trust deed and trustee's deed did not constitute notice to subsequent purchasers from the common source. Carter v. Holman, 60 Mo. 498; Land & Lumber Co. v. Franks, 156 Mo. 673.
Wilson Cramer for respondents.
(1) The deed of trust and trustee's deed, being regular in form and duly acknowledged and certified according to law, were entitled to record and were recorded on the land records of Stoddard county promptly after their respective dates. 1 Wagner's Statutes 1872, p. 277, sec. 24. (2) The defendants claim through a quitclaim deed executed by William R. Kitchen, made nearly ten years after the recording of the trustee's deed. (3) Aside from the other recitals in the deed of trust and trustee's deed hereinafter adverted to, which render the description certain, these conveyances are not void because of the omission of the township and range, but are good between the parties. Gatewood v. House, 65 Mo. 633; Bollinger v. McDowell, 99 Mo. 632; Fordyce v. Rapp, 131 Mo. 354. (4) If good between the parties they must be valid as against subsequent purchasers with notice from the same grantor. (5) Deeds are to be so construed as to carry out, if possible, the intention of the parties. Preswell v. Headley, 141 Mo. 187; Briant v. Garrison, 150 Mo. 655; Walton v. Briant, 152 Mo. 489. (6) The description in a deed is to be construed most favorably to the grantee. 3 Washb. Real. Prop. (3 Ed.), p. 343; Bray v. Conrad, 101 Mo. 331; Cole v. Mueller, 187 Mo. 638. (7) The intention of William R. Kitchen in executing the deed of trust was to secure the payment of a debt due to Edward Martin & Co., and to convey for that purpose lands lying in sections 6 and 7 in township 27, range 10. He owned no other land in Stoddard county. By mistake of the scrivener, evidently the township and range were omitted, and the land was described as follows: "The south half of lot one of the southwest quarter of section six and northwest quarter of section seven, north of Castor river." The plat-book of original entry shows that Castor river runs east and west through the northwest quarter of section 7, township 27, range 10. There is no other section 7 in Stoddard county, the northwest quarter of which is touched by Castor river. The evident purpose was to convey that part of the northwest quarter of section 7 lying north of Castor river and adjacent to it. This is made clear by reference to the several deeds through which William R. Kitchen acquired title, all of which were of record and were introduced by plaintiff. (8) That the words "north of Castor river" were descriptive words, used to designate land lying adjacent to the river, and were so understood, is further shown by the fact that the same words are used in the deeds made nearly ten years after the trustee's sale. (9) There being no other northwest quarter of section 7 in Stoddard county through which Castor river runs, and the plain, evident meaning of the words "north of Castor river" being that the land conveyed was on the north side and adjacent to Castor river, the description, the deed of trust and the trustee's deed identify the land as being in section 7, township 27, range 10. (10) The several conveyances to which William R. Kitchen acquired title, as well as the deed of trust executed by him, were in defendants' chain of title, and they are bound by every recital therein. Webb on Record of Title, sec. 178; Tydings v. Pitcher, 82 Mo. 379; Mason v. Black, 87 Mo. 329; Knox Co. v. Brown, 103 Mo. 223; McDonald v. Quick, 139 Mo. 484. (11) The circumstances shown by the evidence justify the conclusion that defendants had actual knowledge of the prior conveyance made by William R. Kitchen, and under whom he claimed. He and his immediate grantors were cousins of William R. Kitchen, and this is a fact which may be considered in connection with the question of notice. Webb on Record of Title, sec. 224; Morrison v. Juden, 145 Mo. 282.
This is a suit in ejectment brought by the widow and heirs at law of Edward Martin, deceased, to recover from George S. Kitchen and his wife the possession of the northwest quarter of section 7, township 27, range 10 east, in Stoddard county, alleged to contain 53 acres, more or less. Why the wife of Kitchen was made a party defendant does not appear.
The answer disclaims any interest in or title to 3.75 acres off the northeast corner of said tract; avers that said 3.75 acres were sold for taxes for the years 1872 to 1876 inclusive under an execution issued on a judgment for taxes against William R. Kitchen, covering the whole northwest quarter of the northwest quarter, which was levied on as his land, and said 3.75 acres were purchased by Edward Martin & Co. at said sale in September, 1882; that Edward Martin was the ancestor of plaintiffs and by such purchase at execution sale he admitted the title to the locus at the date of the purchase, was in W. R. Kitchen, from whom both plaintiffs and defendants claim title, and that by said purchase plaintiffs are estopped from denying that W. R. Kitchen was the owner of and held title to the land at that date. The answer also tendered the general issue.
The replication denied all new matter pleaded in the answer.
The cause was tried before the court without a jury. A judgment was rendered for plaintiffs for possession (damages, rents and profits were not adjudged), and defendants perfected their appeal in conventional form.
The story of the case is as follows:
W. R. Kitchen is the common source of title, and on November 12, 1873, he executed a deed of trust to Daly, trustee, for the benefit of Edward Martin & Co. of St. Louis, securing two notes for $ 257 each, due respectively in six and twelve months, on two several tracts of land in Stoddard county, one of them being described as the "northwest quarter of section seven, north of Castor river," omitting all reference to township or range. This deed of trust was in usual form, was duly placed of record and was foreclosed, because of default, by the sheriff of Stoddard county, as acting trustee, on the 15th day of August, 1877, who straightway executed a trustee's deed to the purchaser, Edward Martin, on his bid of $ 300 in the aggregate for both tracts covered by the deed of trust, who presently recorded the same. In the trustee's deed the land is also described as the "northwest quarter of section seven, north of Castor river," and while the state and county are mentioned, no township or range is given.
Plaintiffs seek to deraign title through these two deeds, and the principal controversy hinges on the omission of the township and range from the description made by the conveyancer. When the trust deed was offered in evidence and the trustee's deed, following that, defendants objected for the reason, among others, that said deed described no property. This objection was overruled, the deeds were admitted and defendants excepted to the ruling.
Defendants seek to deraign title through a series of deeds commencing with one from the said W. R. Kitchen and his wife to George W. Kitchen of date of March 4, 1887, recorded September 5 1887, describing the land as the "north fractional half of the northwest quarter, north of Castor river, in section 7, . . . in township 27 north, of range 10 east;" followed by one from G. W. Kitchen and wife to William G. Kitchen of date of September 18, 1893, recorded December 9, 1893, similarly describing the land; followed by one from W. G. Kitchen to W. J. Kitchen, dated November 3, 1893,...
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