McIntyre v. Casey

• Decision Date: 06 January 1916
• Docket Number: No. 17537.,17537.
• Citation: 182 S.W. 966
• Parties: McINTYRE v. CASEY et al.
• Court: Missouri Supreme Court

182 S.W. 966

McINTYRE v. CASEY et al.

No. 17537.

Supreme Court of Missouri, Division No. 2.

January 6, 1916.

Rehearing Denied February 15, 1916.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Ejectment by Kate E. McIntyre against John Casey and others, with cross-bill for reformation of deeds. Judgment for defendants, and plaintiff appeals. Modified and affirmed.

Hall & Dame and Wm. H. O'Brien, all of St. Louis, for appellant. Henry W. Allen, of St. Louis, for respondents.

WALKER, J.

Ejectment to recover a part of lot 17 in the Auguste Gamache addition to the city of Carondelet, now a part of the city of St. Louis. This action was instituted in the circuit court of said city in 1911. Plaintiff claims title to the lot in controversy under deeds from defendant and wife made to her in 1896 and 1904. The lot as described in these conveyances is as follows:

"Lot seventeen (17) in Auguste Gamache's addition to the city of Carondelet and being in block No. twenty-nine hundred and twenty-eight (2928) of the city of St. Louis, fronting ninety-six feet, nine inches (96' 9") on the west line of Sixth street, which is now dedicated and open and sixty (60) feet wide, and running westwardly between parallel lines, from said west line of Sixth street, one hundred and fifty (150) feet, more or less, to a twenty (20) foot alley, bounded north by the north line of said lot 17, east by Sixth street, south by lot 16 and west by said alley."

For a clearer understanding of this description see map.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plat of the Gamache subdivision showed certain numbered lots and streets. One of the latter was Sixth street, sometimes designated as Vermont avenue; it was 35 feet wide and located east of and adjacent to said lot 17. This street had not been used as a highway since 1883, if in fact it had ever been so used, and it was subsequently vacated; the reason for such nonuser and vacation being that another street, known by the same number, but subsequently named Vermont avenue, which was 60 feet wide and bisected said lot 17 north and south, had been used as a public highway since 1881, and was dedicated as such in 1904. The property sought to be recovered is that part of lot 17 lying east of Vermont avenue as shown on the map. The controversy arises from the different constructions placed upon the description of the lot, due primarily to the two streets having the same name. This will be developed in a recital of the facts.

The petition is in the usual form. The answer is a general denial and a cross-bill, which sets up an equitable defense and asks a reformation of the deeds in conformity with the intention of the parties. The material allegations of this pleading are in accord with the testimony, and a recital of same is therefore necessary to an understanding of the case.

In the year 1855 the Gamache addition was laid out, and a plat thereof executed and recorded showing blocks and lots and dedicating to public use certain streets and alleys, including a street called Sixth street, 35 feet in width; among the lots was one numbered 17, having a frontage of 96 feet 9 inches, more or less, on said Sixth street and extending westward 150 feet to an alley; in 1889 John W. Casey, the defendant, purchased said lot, and at that time and for many years prior thereto the 35-foot street was not in use as a highway, but a street known as Sixth street, 60 feet in width, did exist and was used by the public, extending approximately through the middle of lot 17 in a northerly and southerly direction, and being an extension of an existing street of the same width north of said lot, which street and the extension later received the name of Vermont avenue. When the defendant bought the lot in 1889 it had a frame dwelling on the part east of Vermont avenue and fronting the same. These allegations of the answer are admitted in plaintiff's reply. The remainder plaintiff denied. They are as follows: The owners of lots similarly situated to that of defendant in all instances had their improvements fronting on the 50-foot street, and not on the 35-foot street of the plat.

In 1896 defendant sold to Reber, trustee for Kate E. McEntyre, that part of lot 17 lying west of said 60-foot street; the conveyance being in trust for the sole and separate use of said Kate E. McEntyre, free from the control of her husband, and the lot was described as in the description heretofore given in this statement. It was understood by and between defendant and plaintiff that the eastern boundary of the lot so conveyed as "lying west of said 60-foot street and described as Sixth street, which is now dedicated and opened 60 feet wide," was the 60-foot street actually opened, and not the 35-foot street shown on the plat of Gamache; that upon the making of this deed defendant surrendered to plaintiff possession of that part of lot 17 west of said 60-foot street, but continued in the possession of the part of same east of said street from that time to the present, and that the plaintiff and Reber, her trustee, had actual knowledge of said fact during all of said time from said conveyance to the present, and did not object thereto or claim any right or title therein that about the year 1900 defendant erected upon the portion of said lot lying east of said 60-foot street, of which he had been in continuous possession, a 2-story brick building, and that plaintiff and her trustee knew that said building was being erected by the defendant, and that he claimed to be the owner of the part of the lot on which the improvement was being made, but that they did not object thereto or claim ownership in such part of said lot; that in 1904, plaintiff's husband having died, she requested defendant to execute another deed for the purpose of correcting the deed of 1896 by changing the...