McCune v. Hull

• Decision Date: 31 March 1857
• Citation: 24 Mo. 570
• Parties: MCCUNE et al., Appellants, v. HULL et al., Respondents.
• Court: Missouri Supreme Court

24 Mo. 570

MCCUNE et al., Appellants,

v.HULL et al., Respondents.

Supreme Court of Missouri.

March Term, 1857.

1. Calls for boundaries may be controlled by other words of description in a deed.

Appeal from St. Louis Land Court.

The facts are set forth in the opinion of the court.

Whittelsey, for appellants.

I. The deed of the executor of Robert N. Moore did convey the land sued for. The deed is to be construed to refer to facts existing at the date of its execution, and the boundaries referred to, therefore, would be the boundaries existing at the date of the order and sale, and the survey for Laclede would, therefore, be the United States survey No. 1584, that being the ““land conveyed for Laclede” at that date. (Jones v. Johnston, 18 How. 150-6; Lamb v. Rickets, 11 Ohio, 311; Giraud's Lessee v. Hughes, 1 Gill & Jo. 249.) The plaintiffs are entitled to all the land within the boundaries called for, although its quantity be greater than stated in the deed. (Marshall v. Bompart, 18 Mo. 84; 5 Metc. 15; Jackson v. Defendorf, 1 Caines, 473.) There are three parts to this description, and apparently the different parts do not agree together. 1st. It is to be three arpens in front, and is to be bounded southwardly and northwardly by lands surveyed for Laclede. The land sued for is bounded south by Laclede, as surveyed by the United States; but there is no land surveyed for Laclede on the north. 2d. But, to make it more certain, it was to be the land surveyed for Gagnon, as appears from Livre Terrien; but no such survey is found; and the United States survey No. 1591 gives only one and a half arpens front; so we have Gagnon's land, one and one-half by forty arpens, and one by forty arpens on the south, to have the land bounded south by land surveyed by Laclede. 3d. It was to be also the same land conveyed to Philip Fine and wife to the Moores, and the same sold by commissioners to R. N. Moore and others; and it may be admitted that they did not intend, nor suppose themselves, to divide and sell the land sued for, although the calls for boundaries embrace it. If the plaintiffs' construction of the order of sale and deed is right, the only error in the actual description will be the call for the three arpens front. Courses, and especially distances, yield to calls for ascertained and settled boundaries. (Campbell v. Clark, 8 Mo. 553; McKee v. Somers, 15 Mo. 84; Jackson v. Ives, 9 Conn. 661.) The first part of the description being more definite, will pass all within the boundaries of a tract, although the latter description of the land conveyed or sold may not pass it. (Jackson v. Remsen, 18 Johns. 107; 5 Metc. 15; Jackson v. Barringer, 15 Johns. 471.) The line of a tract of land is a call as well as a natural object. (Carroll v. Harwood, 5 Harr. & Johns. 163; Pennington v. Bordley, 4 Harr. & Jo. 457.) The land surveyed for Laclede is an actual boundary, as shown in evidence, and that call appeared upon the plats of the United States surveys, to which purchasers would go for reference as to the actual location of the tract sold, and its bounds.

Cline & Jamison, for respondents.

SCOTT, Judge, delivered the opinion of the court.

Robert N. Moore died in 1849, having devised all his real estate to his wife Mary Ann. In September, 1850, his widow, Mary Ann Moore, intermarried with James M. Lyon. Hugh Garland was the executor of R. N. Moore, and as such procured a sale of real estate belonging to his testator. On the 17th November, 1851, James M. Lyon bid off the real estate thus sold. On the 29th March, 1852, by a deed duly recorded, Lyon, and his wife claiming as devisee, conveyed to Joseph S. Hull, one of the defendants, their interest in the lot in dispute. Lyon being unable to comply with the terms of the sale made by Garland (the executor), conveyed the interest acquired at said sale to the plaintiffs, McCune & Vandeventer, on the 21st September, 1853, and on the same day the executor gave them a deed for the land purchased originally by Lyon. McCune and Vandeventer, the plaintiffs, claim that the deed received by them from the executor of R. N. Moore conveyed the interest to them in the lot which Lyon and his wife had conveyed to Joseph S Hull, the defendant. This interest is the subject of this controversy.

The lands in controversy consisted of three common fieldlots belonging to the Grand Prairie, northwest of St. Louis. Two of these lots were one and a half arpens by forty arpens in width, and constituted a tract or parcel of three arpens in front by forty in depth. The other lot was one arpent in front by forty in depth, and constituted another tract or parcel. The two tracts adjoined each other and formed a parallelogram of four arpens in front by forty in depth. The whole parallelogram was under one inclosure at the time of the executor's sale, and made the homestead of the Moore family--the dwelling-house being on the one by forty arpens. Some of the witnesses were of opinion that at the sale the whole four arpens front were sold. The two tracts composing the entire parallelogram had been acquired by the Moore family at different times by distinct purchases from different vendors--the three arpent lot from Philip Fine, and the one arpent lot from the heirs of Benito Vasquez-- and by this description it was conveyed by Lyon and wife to Joseph S. Hull, the defendant. The deed under which the plaintiffs claim, being the deed of Garland, R. N. Moore's exec...