McComas v. Umlauf, 12445

• Decision Date: 28 September 1982
• Docket Number: No. 12445,12445
• Citation: 641 S.W.2d 809
• Parties: Lou M. McCOMAS, Plaintiff-Appellant, v. Lee Roy UMLAUF, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 809

641 S.W.2d 809

Lou M. McCOMAS, Plaintiff-Appellant, v. Lee Roy UMLAUF, Defendant-Respondent.

No. 12445.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 28, 1982.

Motion for Rehearing or Transfer to

Supreme Court Denied October 14, 1982.

Application to Transfer Denied

Dec. 13, 1982.

Wm. C. Morgan, Waynesville, for plaintiff-appellant.

Ronald J. Fuller, Rolla, for defendant-respondent.

TITUS, Judge.

Via a four-count first amended petition plaintiff sued to quiet title to certain described Pulaski County real estate, to enjoin defendant from trespassing thereon and for damages on account of alleged past trespasses. Defendant answered and cross-petitioned in three counts for relief similar to that sought by plaintiff. The trial court entered judgment in favor of defendant on plaintiff's petition and declared plaintiff and defendant respectively to be the owners of certain described adjoining real estate. The judgment also dismissed counts II, III and IV of plaintiff's petition and counts II and III of defendant's cross-petition. Plaintiff appealed.

Dexheimer et uxor were the owners of the "70 acres, more or less" involved in this litigation. In 1969 the Dexheimers agreed to sell the north "4.4 acres, more or less" of their property to the Plummers. To determine the southern boundary of the property to be sold, Dexheimer constructed a southwest-northeast fence to mark that boundary and had J.T. Powell, a registered land and county surveyor, survey the property to be sold and prepare a certified plat thereof. Before the survey was made, Dexheimer showed Powell the already constructed and standing fence and explained that the fence was to be the southern boundary of the tract to be described and conveyed to the Plummers. The warranty deed of the Dexheimers to the Plummers described the property being conveyed exactly as stated by Powell on the plat of the real estate. The deed, inter alia, stated: "Description as per Survey made by J.T. Powell under date of June 29, 1971." In 1971 defendant purchased from the Plummers the same tract of land described in the deed from the Dexheimers to the Plummers. Five years thereafter, or in 1976, the Dexheimers conveyed the remaining "65 1/2 acres, more or less" of their property to the plaintiff. The deed given plaintiff described all of the property originally owned by the Dexheimers "Except that part ... described in conveyance to Earl M. Plummer and wife recorded in Book 242, Page 108 ...."

In June 1978 plaintiff had a new survey made by Robert Elgin. The surveyor did not follow the description contained in the Dexheimer-Plummer deed and used different bearings and methods than those employed by Powell and recited in the deeds. The new survey purported to show that defendant's south boundary should be 90 feet north of the existing fence. At trial plaintiff claimed that in 1977 defendant had moved the original fence 90 feet further south from its original location. This assertion was denied by defendant, his son, a neighbor Gass and Dexheimer, all of whom claimed the fence remained constantly in the same location as when originally erected by Dexheimer in 1969. After the new survey had been made, plaintiff undertook to construct a new fence along the line therein indicated. Defendant removed the new fencing material and placed it on plaintiff's property south of the original line fence. Shortly thereafter plaintiff instituted the instant action.

Plaintiff's first point relied on in this appeal is that the trial court erred in declaring defendant to be the owner of the land described in the judgment because defendant, via his answer, judicially admitted that plaintiff was the owner of the real estate described in the deed given plaintiff by the Dexheimers. In paragraph 2 of Count I of plaintiff's first amended petition, plaintiff alleges that she is the owner of certain real estate described as was done by Robert Elgin who conducted the June 1978 survey at plaintiff's behest. In answering paragraph 2, defendant specifically denied "that Plaintiff is the owner in fee simple of the real estate described in said Paragraph 2." Defendant's further answer asserting that plaintiff was the owner of only that property described in the deed given her by the Dexheimers is far from constituting a judicial admission that plaintiff was the owner of property whose description expanded that contained in the deed. The deed to plaintiff conveyed to her all of the Dexheimer property "Except that part ... described in conveyance to Earl M. Plummer and wife recorded in Book 242, Page 108 ...." The reference to the deed given Plummer et uxor in the deed given plaintiff, made the reference part and parcel of the deed to the plaintiff. Mexico Refractories Co. v. Roberts, 237 Mo.App. 299, 306, 167 S.W.2d 660, 663 (1942). The answer does not constitute the admission claimed by plaintiff and the first point is denied.

The second point relied on by plaintiff restates many of the same objections to the judgment nisi as asseverated in her first point. Apparently plaintiff has ignored the rule that in court-tried cases we are obliged upon appeal to sustain the judgment of the trial court unless we find it to be against the weight of evidence or unless it erroneously declares or applies the law. Before we may so conclude, we must be possessed of a firm belief the judgment is wrong for the trial court's resolution of conflicting evidence must be afforded due deference by us as that court, as trier of the facts, has leave to believe all, part or none of the testimony of any witness. Where conflicts in testimony exist, as in the present cause, we may assume the trial court believed the testimony and evidence which was consistent with its findings and judgment. State ex rel. Hillhouse v. Hunter Raffety Elevator, Inc., 636 S.W.2d 400, 402 (Mo.App.1982); McClelland v. Williamson, 627 S.W.2d 94, 96[1, 2] (Mo.App.1982).

Plaintiff additionally contends that ejectment and not quiet title was the proper remedy. This overlooks that count IV of plaintiff's first amended petition was for ejectment and that the court dismissed that count and refused to eject defendant from property which the court declared was owned and occupied by defendant and his predecessors in title since 1969. Plaintiff may not successfully fault the defendant for not filing an ejectment claim when the evidence, obviously accepted by the trial court, established that defendant was in possession of all the land conveyed to him. This being so, there was no call or need for defendant to seek ejectment of plaintiff.

Plaintiff's assertion that defendant's cross-petition did not state a cause of action on the relief afforded, ignores that plaintiff's pleadings, per § 527.150 RSMo 1978, asked the court to "try, ascertain and determine the estate, title and interests of the parties ... in and to the said real estate, and define and adjudge ... the title, estate, and interest of the parties ... in and to said real estate ... to hear and finally determine any and all rights, claims, interests ... whatsoever of the parties concerning or affecting the said real estate .... to award full and complete relief, whether legal or equitable." The statute, i.e. § 527.150, relating to determination of interests in and quieting title to real estate is remedial and is to be liberally construed....