McGill v. Hampton

• Decision Date: 20 May 1954
• Docket Number: No. 7208,7208
• Citation: 268 S.W.2d 74,241 Mo.App. 768
• Parties: McGILL et al. v. HAMPTON et al.
• Court: Missouri Court of Appeals

Page 74

268 S.W.2d 74

241 Mo.App. 768

McGILL et al. v. HAMPTON et al.

No. 7208.

Springfield Court of Appeals, Missouri.

May 20, 1954.

William B. Sharp, Malden, for appellants.

Veryl L. Riddle, Riddle & Baker, Malden, for respondents.

BLAIR, Judge.

This is an appeal involving the action of the Circuit Court of Dunklin County, in approving the report and suggestions of the referee, previously appointed by the court, recommending to the court that the judgment of the trial court should be in favor of plaintiffs and against the defendants. Appellant Barnes was the Sheriff of Dunklin County and acted as substitute for the trustee named in the deed of trust, under consideration, and had no further interest in the case.

Respondents Thomas C. McGill and Helen McGill, husband and wife, were the plaintiffs below, and will be referred to only as plaintiffs in this opinion. Walter Hampton and Evelyn Hampton, husband and wife, appellants here, were defendants in the trial court, and will be so referred to in this opinion.

The petition filed by plaintiffs alleged that defendants Hampton made a trade with plaintiffs McGill for land adjoining the city of Malden, described as follows:

'All of that trust or parcel of land described as follows:

'Beginning Two Hundred (200) feet North of the Southwest corner of Outlot One (1) in the South Side Addition to the City of Malden, Missouri, and running thence North Fifty (50) feet; thence East Three Hundred (300) feet; thence South Fifty (50) feet; thence West Three Hundred (300) feet to the place of beginning, and to be known hereafter as Lot Six (6) in Roussel's Addition to the City of Malden, Missouri'.

Plaintiffs executed a deed of trust to secure a balance of $600 due from plaintiffs and payable to defendants Hampton, as specified in said deed of trust.

Defendants Hampton, in their answer, claimed that the description in the deed they gave plaintiffs was the same land described in the deed from Hamptons' grantors. Defendants claimed that a mutual mistake was made and that they did not intend to convey to plaintiffs McGill more land than the 300 feet conveyed to defendants Hampton in the deed from the former owners.

Plaintiffs refused to make the payments provided for in the deed of trust and defendants threatened to foreclose the deed of trust. Plaintiffs brought an injunction suit to prevent such foreclosure and alleged that defendants Hampton had only 150 feet on the west side of the tract described, instead of 300 feet. The trial court required the plaintiffs to give a temporary injunction bond. The 150 feet at the east end of the tract belonged to one Charles Leathers, about whose ownership there was no dispute.

The trial court appointed Honorable John H. Bradley, as referee. The parties gave their evidence to said referee, and he reported to the trial court. We do not find any agreement in the pleadings that the trial court should appoint a referee. Such agreement was not necessary, as the trial court had the inherent power to make such an appointment.

Buchanan v. Rechner, 333 Mo. 634, 62 S.W.2d 1071 loc. cit. 1072; Fitzgerald v. Hayward, 50 Mo. 516; Home Exch. Bank v. Koch, 326 Mo. 369, 32 S.W.2d 86; Phillips v. Todd, Mo.App., 180 S.W. 1039 loc. cit. 1043; Sidway v. Missouri Land & Live Stock Co., 187 Mo. 649 loc. cit. 677, 86 S.W. 150 loc. cit. 158; National Union Fire Ins. Co. v. Nevils, 217 Mo.App. 630(19), 274 S.W. 503 loc. cit. 507.

The appointment of the referee was made on January 8, 1951. The referee was a man of long experience, both as a lawyer and as a judge. The transcript is mostly filled with the testimony of the various witnesses who appeared before the referee.

From the report of the referee, the trial court was justified in finding that a hard rain prevented plaintiffs from seeing the fence at the west side of the land owned by Leathers, and that when plaintiffs returned the next day, the weeds on the east side of the 150 feet were so high that plaintiffs were unable to see the fence of Leathers. They merely assumed that defendants were trading to them the 300 feet described in the deed of trust.

On the other hand, defendant Walter Hampton and his wife, testified that Leathers' fence could readily be seen from the house on the lot plaintiffs were getting from them, and that there was an outside toilet on the east side of that lot, with a path leading to the same.

The consideration for the trade was a tractor and equipment, on which plaintiff Thomas C. McGill was indebted in a large sum. The parties finally traded and defendants coveyed to plaintiffs the strip of land 300 feet east and west, and accepted from them as a back payment an agreement to make an additional payment of $600, with interest thereon, as specified in the deed of trust.

Plaintiff Thomas McGill testified before the referee that defendant Walter Hampton told him before the deed of trust was executed that there was 50 feet by 300 feet in the lot. Mrs. Hannah Jones testified that the weeds in the back yard were higher than her head and were very thick. Defendant Hampton was not present the next day, when plaintiffs said the weeds at the east end of the lot were too high to permit them to see the fence of Charles Leathers. Defendant Mrs. Hampton testified that she was in the car the day it was raining and heard defendant Walter Hampton point out to plaintiff Thomas C. McGill where the lot ran to. She said that defendant Walter Hampton told McGill 'that he thought the lot was like it was here.' 'Indicating the Pickard deed to defendant Walter Hampton.) Alma Huntington testified for defendants. She said she saw plaintiff McGill go out on the back porch and look around, and she paid no further attention to him.

The referee, in his report to the trial court sa...