Meyers v. Ustick

• Decision Date: 08 September 1922
• Docket Number: No. 22874.,22874.
• Citation: 243 S.W. 833
• Parties: MEYERS v. USTICK.
• Court: Missouri Supreme Court

243 S.W. 833

MEYERS v. USTICK.

No. 22874.

Supreme Court of Missouri, Division No. 2.

September 8, 1922.

Appeal from Circuit Court, Boone County; David E. Harris, Judge.

Action for specific performance by O. D. Meyers against William J. Ustick. From judgment for plaintiff, defendant appeals. Affirmed.

Jas. S. Rollins and North T. Gentry, both of Columbia, for appellant.

E.C. Anderson, of Columbia, and Arthur Bruton, of Centralia, for respondent.

WALKER, J.

This is a suit for the specific performance of an oral contract for the exchange of roadways over the appellant's and.

At the time of the institution of this suit and for some time before, the parties hereto were the owners of adjoining farms; the respondent's farm was located south of that of the appellant, and is not reached by a public road.

Respondent's farm is described as the east half of the northwest quarter of section 21, township 48, north of range 12, west of the fifth principal meridian in Boone county.

The appellant's farm is described as all of the west half of the southeast quarter lying south of the south line of the Columbia and Cedar creak gravel road, also all of the east half of the southwest quarter lying south of the south line of the Columbia and Cedar creek gravel road, both in section 16, township 48, north of range 12, west of the fifth principal meridian in Boone county.

In 1890, one Allen Park owned the tract of land which now comprises the farms of the respondent and the appellant. In April of that year he conveyed the land which now belongs to the appellant to one Mary Million, reserving in said deed a roadway over the land now belonging to the appellant 24 feet wide, running from the northeast corner of the east half of the northwest quarter of section 21, township 48, range 12, in a northeasterly direction to the gravel road, to be used as an outlet for the 80 acres of land now owned by respondent, and when it ceased to be so used, then to revert to the owner of the lands above conveyed.

The title to the land described as having been conveyed to Mary Million has passed by mesne conveyances, and is now owned by the appellant. The roadway described in the various deeds was in a bad condition, and was practically impassable when the respondent acquired his land. From 1916 to 1919 he built culverts and graded portions of the road in an effort to render it fit for travel.

For other reasons its location was found objectionable to both parties, and in January or February, 1919, they entered into an oral contract, whereby it was agreed that the appellant would convey to the respondent a right of way for a road over the land of the appellant at a point west of the roadway as then established, and in consideration of same the respondent would abandon the roadway then owned by him and allow the same to revert to the appellant as provided in the deeds establishing and conveying the same, and that the roadway thus established should be used by the respondent on the same terms and conditions as that of the former road.

In compliance with this agreement, but before any conveyance had been made of the roadway, the appellant and the respondent built the necessary culverts and bridges, graded the new roadway and provided a gateway at the north line of appellant's farm, where the roadway comes out upon the gravel road, and at the south side of his farm, where said road enters the farm of the respondent, and put the same `in condition for travel. Thereupon the respondent and the appellant began to use said roadway, and have continued to use it, and abandoned the old roadway, which was plowed up by the appellant and planted in corn. In the preparation of the new roadway, the appellant and the respondent both contributed to the labor and expense of the same.

Some months after the new roadway had been put in traveling condition and was being used by the respondent, and after he had abandoned the old roadway and the appellant had plowed the same up and was cultivating it in corn, the respondent approached the appellant and requested the execution of an instrument in waiting, so that it could be shown as a matter of record that the appellant had granted the respondent a new roadway over the land in consideration of the latter abandoning the old roadway. The parties went to a Mr. Spencer in Columbia, who was not a lawyer, with reference to the preparation of such an instrument as would set forth what had actually been done between them. He advised them, in view of the provisions of the various deeds with reference to the land that no instrument of writing was necessary, and to let the matter go until he could have an opportunity to view the premises and be better enabled to prepare a description of same. This condition of affairs continued during the remainder of the year 1919. In the early part of 1920, Mr. Spencer was again approached by the parties with reference to the matter, and he advised them to employ an attorney to prepare the instrument that it might be executed by the appellant, Whereupon the appellant employed Mr. Gentry, an attorney, to prepare such an instrument for him. In January, 1920, Mr. Gentry prepared a quitclaim deed, conveying the new roadway from the appellant and wife to the respondent, which quitclaim deed was in March, 1920, executed and acknowledged by them. It also appears that Mr. Gentry, although not employed by the respondent, prepared a quitclaim deed for him and his wife to sign, relinquishing their...