McDaniel v. Leuer

• Decision Date: 09 April 1921
• Docket Number: No. 21834.,21834.
• Citation: 230 S.W. 633
• Parties: McDAN1EL et al. v. LEUER et ux.
• Court: Missouri Supreme Court

230 S.W. 633

McDAN1EL et al. v. LEUER et ux.

No. 21834.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from Circuit Court, Butler County.

Suit by C. T. McDaniel and another against Henry B. Lauer and wife. From the judgment, defendants appeal. Affirmed.

E. R. Lentz, of Poplar Bluff, for appellants.

Hill & Phillips, of Poplar Bluff, for respondents.

JAMES T. BLAIR, J.

Respondents sued under section 1970, R. S. 1919, to quiet title to a parcel of ground in Butler county which the petition describes thus:

"Commencing at the northwest corner of lot No. 4 in block No. 2, in Johnson's addition to the city of Poplar Bluff, Mo., and on the northeast line of Main street in said city, and running thence northeasterly with the line of the said lot 4 to the northeast corner of the said lot; thence southeasterly with and in extension of the northeast boundary line of said lot 108.7 feet to the southeast boundary line of said Johnson's addition; thence with said southeast boundary line of said Johnson's addition 121.5 feet, to the northeast boundary line of Main street; thence with the boundary line of Main street 58.7 feet to the place of beginning."

The petition stated appellants claimed some right, title, or interest therein adverse to respondents, and prayed judgment quieting title.

Appellant Henry E. Leuer, who is the husband of the other appellant, filed answer in which he (1) denied "each and every allegation, averment, and statement of fact in said petition," and prayed judgment for costs; (2) averred that the petition "describes land situated wholly in Johnson's addition to the city of Poplar Bluff, and this defendant expressly denies that he is in possession of or makes any claim to any land situated in block 2 in Johnson's addition to Poplar Bluff, or to any land in Johnson's addition adjoining said block 2, but this defendant says that he is informed and believes, and so states the fact to be, that the plaintiffs make some claim to some right, title, or interest in and to a strip of land 8 feet in width lying immediately south of and adjoining Johnson's addition, of which strip of land ____ is the owner in fee simple," and then pleads the 10, 24, and 31 year statutes of limitation as to this last-described strip, and prays judgment; (3) averred that Almarine R. Johnson, on October 14, 1879, conveyed to Neal, and Neal took possession of, a parcel 104 by 416 feet out of a tract previously conveyed to the grantor by Turner, that Neal inclosed the parcel and conveyed to Bates, who conveyed to Lacks, who on July 13, 1887, conveyed a part of the parcel to appellant Henry E., who took possession which he had held adversely, etc., for more than 31 years, and that respondents had never paid any taxes thereon; (4) to these was appended a cross-complaint in which appellant Henry E. alleged he owned in fee simple a parcel described thus:

"Commencing at the northwest corner of the lot or tract of land conveyed by Almarine R. Johnson to George A. Neal * * * on the 14th day of October, 1879, * * * running thence northeasterly with the west or northwest line of said lot or tract of land 121 feet and 5 inches; thence south 49 degrees west 8 feet; thence westerly parallel with the west or northwest line of said lot 121 feet and 5 inches to Main street; thence northwesterly to the place of beginning"—

that respondents made some claim thereto. The cross-complaint then asks to have the title in the described strip declared and quieted in appellant Henry E. Appellant Florence R. Leuer filed answer in which she "denies each and every allegation, averment, and statement of fact" contained in the petition, end prays for judgment accordingly. Respondents filed a reply which consists of (1) a general denial, and (2) the fallowing:

"And plaintiffs disclaim any right, title, or interest in the land described in the deed from Eli Lacks to IL E. Leuer, recorded in Book W at page 344."

Almarine Johnson became the owner of the land described in the petition and answer in 1877. In April, 1887, a plat of Johnson's addition was recorded. The description on the plat reads as follows:

"Johnson's Addition to Poplar Bluff, Mo. This plat representing Johnson's addition to the city of Poplar Bluff, Butler county, Mo., is a Part of the east half of lot 1 of the northeast quarter of section 3, in township 24 north of range 6 east; and the streets and the alleys herein appearing are dedicated to the use of the public forever. In witness," etc.

The plat is marked filed April 5, 1887. The deed from Lacks to appellant Henry E. was dated July 13, 1887, was recorded in Book W at page 344, and described the land conveyed in this manner:

"Commencing at the southwest corner of lot 4 in block 2 of Johnson's addition to the city of Poplar Bluff, as shown by plat on file in the office of the recorder of said county; then south 49 deg. east 96 feet along the east line of Main street; thence north 62 deg. 30 min. east 121 feet and 5 inches; thence north 49 deg. west 96 feet; then south 62 deg. 30 min. along the line of block 2, 121 feet and 5 inches —being a part of the east half of lot 1 of the northeast quarter of section 3 in township 24 north of range 6 east."

October 16, 1895, Almarine B. Johnson and her husband conveyed to Louise Sutton a parcel of land which was described in the deed as respondents describe in their petition the parcel the title of which they seek to quiet. This parcel passed through several hands, always by the same description. The deed to respondents was dated February 7, 1916, and contained the same description.

There was evidence tending to prove that Neal took possession under his deed and built a fence and a small house; that as early as 1887 the fence was in its present position and has been there ever since; that a corner stone was in existence many years ago at the northeast corner of the lot now in Leuer's possession; that Leuer took possession in 1887 and built two houses on the tract he now has possession of and claims; that he has occupied, claimed, and paid taxes on the tract since 1887; that Johnson's addition was surveyed in April, 1887, and did not extend south of the fence then in existence on the line which Leuer now claims to be the north line of his property and the south line of Johnson's addition; that the surveyors "surveyed right to that fence. *

There was evidence tending to show the plat offered in evidence was made by the surveyor who had charge of laying out Johnson's addition, and that it was put on file in April, 1887, and was the only plat of the addition ever on file. Appellant Henry Leuer testified he did not claim any land owned by respondents in Johnson's addition or any land north of the fence; that he had "at all times claimed all land up to that north fence, believing that was the true line; claimed to the fence." Respondents offered to prove they had paid the taxes on lot 4, block 2, of Johnson's addition. Thereupon appellants' counsel stated: "We do not claim anything in lot 4 of block 2," and the offer was abandoned. This interchange ended the taking of the evidence.

The court took the cause under advisement and thereafter rendered judgment. This judgment recites that the court found that appellants had "disclaimed any right, title, interest, or estate in or to the land described in plaintiffs' petition," which the court then described in the judgment as it was described in the petition, and gave judgment quieting and confirming the title thereto in respondents as against appellants and enjoined appellants from asserting any claim thereto. The court then found respondents had "disclaimed any right, title, interest, or estate in the lands described" in the answer, "which land borders on the true southeastern boundary line of Johnson's addition to the city of Poplar Bluff, Mo., which land is described as follows, to wit: A strip of land about 8 feet wide south of and adjoining the true southeastern boundary line of Johnson's addition to the city of Poplar Bluff, Mo." The court then found that appellant Henry E. Leuer was the owner in fee simple of "the land last above described, which lies south of the true southeastern boundary line of Johnson's...