Miller v. Halleran

• Decision Date: 09 February 1925
• Parties: PERCY L. MILLER and AMEY L. MILLER, Respondents, v. CLAUDE HALLERAN and MAUD HALLERAN, Appellants. *
• Court: Kansas Court of Appeals

270 S.W. 427

219 Mo.App. 195

PERCY L. MILLER and AMEY L. MILLER, Respondents, v. CLAUDE HALLERAN and MAUD HALLERAN, Appellants. *

Court of Appeals of Missouri, Kansas City

February 9, 1925

Appeal from the Circuit Court of Jackson County.--Hon. Thos Buckner, Judge.

AFFIRMED.

Judgment affirmed.

German & Hull for respondents.

James A. Kemper and S. J. McWilliams for appellants.

OPINION

TRIMBLE, P. J.

This is a suit in unlawful detainer. Anna B. Halleran was the record owner by title in fee simple of the north half of lot 5, Campbell's Addition to Westport, now Kansas City Missouri, and on May 17, 1911, jointly with her husband executed a deed of trust thereon to Lex McDaniel, Trustee for the Westport Avenue Bank, to secure a note for $ 1000.

On the 24th of December, 1911, Mrs. Halleran died leaving a last will and testament, which was duly probated, wherein she devised "the north one-half of lot 5, Campbell's Addition to Westport, now a part of Kansas City" to her four children named therein, in equal parts, of whom the defendant Claude T. Halleran is one, and his sister, Marie Halleran, is another. Anna B. Halleran's husband died in 1917 or 1918.

The note was not paid but ran along for some time. It would seem from the record that Claude Halleran and his sister Marie obtained an assignment or an extension of the note. At any rate, on September 10, 1920, the two executed to the bank their note for the amount of the mortgage note and accrued interest, and in a written instrument pledged the above-mentioned note and deed of trust to the bank with full power in the bank to foreclose and sell said real estate if said note were not paid.

No effort being made to pay the note, the Bank requested the trustee to foreclose, and in due and proper form he did so, and the property was sold at foreclosure sale on May 4, 1921, respondents buying it at such sale for the sum of $ 2375 cash, and a Trustee's Deed in due and regular form was made to them.

After the foreclosure, however, defendant Claude T. Halleran and his wife refused to surrender possession of the property, whereupon, after demand for possession, this suit in unlawful detainer was brought.

The case originated, of course, in a justice court, went from there to the circuit court where it was tried by Division One without a jury, and after the evidence was heard, judgment was rendered at the May term, June 16, 1923, the record of which adjudges that plaintiffs have restitution of the property and recover of defendants the sum of $ 1225 as damages and $ 50 per month from June 16, 1923, until restitution be made, as rents and profits, and that defendants' appeal bond being for only $ 1200, plaintiffs' recover of the surety thereon only $ 1200, and that execution issue.

At the September term, October 6, 1923, the court, before passing on defendants' motion for new trial, all parties appearing, found from the minute entries of the court and clerk that no judgment was rendered against the surety on defendants' appeal bond, but that when the final record entry was prepared by counsel and handed to the clerk, such entry included such judgment on the appeal bond by mistake, and the court struck out of and eliminated from the record of the judgment all that part in reference to a judgment on the appeal bond. Thereupon the defendants' motion for new trial and in arrest were overruled and the defendants appealed.

It is conceded that Anna B. Halleran lived in the house on the premises known as 4111 Penn street, which adjoins or is immediately south or southeast of a certain alley which will be hereinafter more particularly mentioned; that after the death of Anna B. Halleran and her husband, the defendants, Claude T. Halleran and his wife, lived in the residence property occupied by said Anna B. Halleran and continued to occupy the same up to and after the institution of this suit.

There is no complaint made as to any defect, irregularity, or imperfection in the deed of trust, or its foreclosure, by which plaintiffs obtained title to the land conveyed thereby. The trust deed and trustee's deed are in the usual form and describe the following real estate as being situate in Jackson county, Missouri, to-wit: "All of the north half of lot five (5), in Campbell's Addition to Westport, now a part of Kansas City, Missouri, as recorded in office of recorder of deeds (at Kansas City) for Jackson county, Missouri." The only foundation for defendants' refusal to surrender possession of the premises is their contention that the premises they occupy and hold (concededly constituting the premises known by the city street numbers as "4111 Penn street"), do not constitute the north half of lot 5, Campbell's Addition to Westport, but form the north portion of lot 4 in said Addition. In other words, their contention is that the description in the deed of trust, namely, the north half of lot 5, Campbell's Addition is not the correct, dedicated-by-plat, description of the premises known as 4111 Penn street but that the same are really the north part of lot 4, and therefore no title to the premises withheld passed by the foreclosure to plaintiffs. The complaint and judgment describe the north half of lot 5, Campbell's Addition and the premises known as 4111 Penn street in Kansas City as one and the same piece of ground. So that the only question is whether they are the same or not.

To properly understand the contention involved, it may be well to state some preliminary facts: A town plat of Westport with the certificate thereon of Sam'l C. Owens, circuit clerk and ex officio recorder, that John C. McCoy acknowledged it to be his free act and deed, was filed and recorded in the recorder's office of Jackson county, February 13, 1835, Record Book C., page 328. This plat shows Main street running northwest and southeast. Cutting into the southeast side of said plat is a tract with its west line running due north and its north line running due east, the angle formed by said two lines being located near the east side of and perhaps two-thirds of the way from the top of lot 21, which tract evidently did not belong to McCoy and is marked on the plat as "Campbell's part of Westport." Lots 20 to 23 on said plat of Westport thus appear to be platted up to the lines of said "Campbell's part" and therefore have irregular boundaries the same as they would appear with the northwest corner of Campbell's tract overlapping, cutting into, or superimposed upon, the plat. An alley running southwest along the southeast ends of lots 24 and 23 stops at the north line of the tract marked "Campbell's part" but reappears again at the west line of the Campbell tract and continues southwest along the end of lot 21 until it opens into Main Street running southeast as heretofore stated.

The southeast portion of said plat of Westport showing the aforesaid lots located with reference to the tract called "Campbell's part of Westport" will more readily appear from the following diagram thereof, to-wit:

[SEE DIAGRAM IN ORIGINAL]

A plat having no name or title, but which all parties to this suit recognize and call "Campbell's Addition to Westport" was filed in the recorder's office of Jackson county at Independence on March 18, 1835, and recorded in Book O., page 1. It bears no signature of Campbell, but does carry a certificate of Samuel C. Owens, clerk of the circuit court, that John Campbell acknowledged it; and on it Samuel H. Irwin, county surveyor of Jackson county, certified that "having been employed by John Campbell, proprietor of the Town of Westport" to survey thirty acres of land and to lay off lots thereon, "I have surveyed said thirty acres of land, and did lay off a number of lots on it, to-wit, as numbered on the within plat from 93 to 113 and that the within plat exhibits a true and correct view of said thirty acres of land and lots as surveyed by me." There is nothing on this plat to show the boundaries or shape of said thirty acres. Nor is any beginning point indicated thereon. The diagram of the lots is located within a square formed by lines, the southwest corner of which is so marked as to indicate that it is the Southwest Corner of "section 20," but the distance from said corner is not given nor are there any dimensions marked on the lots. Indeed, it is manifest on the face of the plat that the diagram is not drawn to a scale, since in a column of figures at the lower right-hand corner of the plat the areas of each of the lots 93 to 113 are given in terms of "square poles" but the areas as thus given do not at all correspond relatively in size as indicated by the diagram of the lots. For instance, the relative size of some of the lots, as indicated by the diagram, are more than twice the size of others and yet the areas given in "square poles" is but little different while other lots which from the diagram appear to be of the same size are shown in terms of area to be greatly different.

"Main street" is shown on this plat as running northwest and southeast at the same angle of direction as "Main Street" shown on McCoy's plat of Westport. The plat of Campbell's Addition also shows a street called "Archibald street" running northeast and southwest crossing Main street at right angles, and extending to the northeast side of the diagram. Lot 93 is south or southeast of and immediately adjoining that part of Archibald street which is southwest of Main street. And south of and immediately adjoining that part of Archibald street which is northeast of Main street appears the diagram of two lots marked respectively 9 and 10, the latter lying lengthwise in the same direction and east of lot 9, with an alley running northwest and southeast between their adjoining ends. On the north or...