Nowlin v. Columbia School Dist.

• Decision Date: 14 March 1966
• Docket Number: No. 2,No. 50995,50995,2
• Citation: Nowlin v. Columbia School Dist., 401 S.W.2d 394 (Mo. 1966)
• Parties: John NOWLIN, Appellant, v. COLUMBIA SCHOOL DISTRICT, Edwin D. Bihr, President, Lee Schaperkotter, Vice President, A. G. Unkelsbay, Member, M. Eugene Windmiller, Member, John W. Woodward, Member, J. R. Warrick, Member, and James E. Saunders, Secretary, Respondents
• Court: Missouri Supreme Court

Page 394

401 S.W.2d 394

John NOWLIN, Appellant, v. COLUMBIA SCHOOL DISTRICT, Edwin D. Bihr, President, Lee Schaperkotter, Vice President, A. G. Unkelsbay, Member, M Eugene Windmiller, Member, John W. Woodward, Member, J. R Warrick, Member, and James E. Saunders, Secretary, Respondents.

No. 50995.

Supreme Court of Missouri, Division No. 2.

March 14, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 11, 1966.

Scott O. Wright, Brown, Wright & Willbrand, Columbia, for appellant.

Spencer, Hines & Petri, Columbia, for respondents.

EAGER, Presiding Judge.

This is an action for the return of a ten percent deposit made by plaintiff upon the purchase, at public sale, of one-half acre of land from defendant School District. The basis of plaintiff's action was that defendant had not furnished a merchantable title to the premises in accordance with its advertisement and its announcement at the sale. Defendant denied that it did not have merchantable title, and counterclaimed for specific performance of the contract of purchase.

An opinion has previously been written and filed in the case, but a rehearing was granted and the case has been reargued. We shall, in this opinion, incorporate certain parts of the prior opinion without quotations. The cause was tried to the court and taken under advisement. Thereafter, the court found generally for defendant on plaintiff's petition, found for the defendant on its counterclaim, decreed specific performance of the contract, and ordered that plaintiff pay to defendant $7,740 as the balance of the purchase price and that he accept delivery of defendant's deed. Upon the overruling of plaintiff's after-trial motions a memorandum opinion was filed, which will be referred to later. Title to real estate is involved and we have jurisdiction.

Plaintiff's sole claim that the title was not merchantable rests in the contention that a reversionary interest was created by an 1867 deed, and that two suits to determine title had been ineffective to cure the defect. In 1866 one John F. Burnam acquired by Sheriff's deed in partition 'Part of the North West Quarter of Section Nine (9), Township Forty Eight (48), Range Twelve (12), containing 137 acres.' Shortly thereafter he had a 'courses and distances' survey made by which it was shown that he had 126.16 acres, being a part of the North West Quarter of said Section Nine. On December 5, 1867, John F. Burnam conveyed by warranty deed to 'M. R. Arnold, President of the Board of Education for Township 48, Range 12' a tract therein described as: 'Commencing at the NE corner of the NW Quarter of Section Nine (9), Township (48), Range Twelve (12); thence South Sixty Nine yards; thence West Thirty five yards; thence North Sixty nine yards; thence East Thirty five yards to the beginning, containing one half acre, more or less.' The habendum and warranty clauses of that deed were as follows: 'TO HAVE AND TO HOLD the same, together with all the rights, immunities, privileges and appurtenances to the same belonging, unto the said party of the Second Part and to his successor, so long as the same shall be used as a site for a school house in said district, and used as such, and no longer. Whenever it fails to be so used, then to revert to the said Burnam. The said party of the first part hereby covenanting that he, & his heirs, executors and administrators shall and will Warrant and Defend the title to the premises unto the said party of the Second Part and to his successors forever, against the lawful claims of all persons whomsoever, subject to the condition aforesaid.' (Italics added.)

The property was occupied by what was known as the Zaring School District (it is not affirmatively shown that it was the successor to the grantee in the 1867 deed, but no such question is raised) until the end of the school year of 1961--1962, namely, until the spring of 1962. During that school year that district was annexed to the Columbia School District, defendant herein. During the following school year (1962--1963) the children of the annexed district were transported to schools within the City of Columbia. The property was then declared nonusable for school purposes, and defendant authorized its sale at auction on January 26, 1963. The Notice of Public Auction prescribed the terms of sale and stated that the transfer of ownership would be by merchantable title to the successful bidder and that an abstract of title would be furnished.

Prior to the sale date and on October 3, 1962, the School District filed its petition to ascertain and determine the estate, title and interest of plaintiff in the described tract and also the interests of those named as defendants. The description of the real estate in the petition and in the subsequent decree was the same as in the 1867 deed from Burnam. By paragraph 2 of the petition the plaintiff alleged its adverse possession of said lands for more than 31 years, 'to-wit: Ninety five (95) years.' By paragraph 4 of the petition the Burnam deed of 1867 was pleaded and it was alleged that this deed reserved 'in said John F. Burnam, personally, a reversionary interest whenever said real estate was no longer used for a school house site.' By paragraph 5 it was pleaded, 'That by law and equity the personal reversion of the said defendant John F. Burnam has long since been extinguished and of no legal effect, but that the same constitutes a cloud on the title of plaintiff.' (Italics added.) Among the defendants named in the suit were predecessors and successors in title (again under vague, incomplete descriptions to the lands) of John F. Burnam, as well as John F. Burnam himself, and also the 'unknown consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary Grantees' of each of such parties, if dead. Also named as defendants were Russell Thielbar and Grace Thielbar, his wife, who in 1945 had obtained a decree quieting title in themselves to a tract which included adjoining lands and the school site; the School District alleged that the 1945 decree was a cloud on its title, although it had not been named as a party defendant in the Thielbar quiet title suit.

The prayer of the School District's petition in its title suit, in usual form, was 'that the court decree and adjudge that the plaintiff is the sole owner of said real estate (therein described as per the 1867 deed), and that the defendant and all persons claiming by, through or under said defendants be forever barred and enjoined from asserting any claim, right, title and interest in and to said real estate or any part thereof, adverse to plaintiff, and that plaintiff's title in and to said real estate be quieted, perfected and the clouds against said real estate removed, * * *.' (Parentheses added.) Service in the cause was by publication, except for the Thielbars who were served personally.

The decree for plaintiff, Columbia School District, was dated November 30, 1962, and filed December 1, 1962; it divested the real estate out of defendants and each of them and vested the same in plaintiff, and it was 'further ordered, adjudged and decreed by the Court, that the above named defendants and each of them, and each and every one claiming by, through or under any one of them, be forever barred and enjoined from asserting any right, title or interest in and to said real estate or any part thereof adverse to the plaintiff, School District of Columbia, Columbia, Missouri, and those who may hereafter claim, by, through or under said plaintiff.' Quite apparently, the petition was based in part upon the provisions of § 527.150, ¹ and the decree was in accordance with that statutory authority.

Undoubtedly the words used in the 1867 deed ² created a fee simple determinable under the Missouri authorities. Donehue v. Nilges, 364 Mo. 705, 266 S.W.2d 553, 45 A.L.R.2d 1150; Board v. Nevada School District, 363 Mo. 328, 251 S.W.2d 20; Chouteau v. City of St. Louis, 331 Mo. 781, 55 S.W.2d 299. Also, under appropriate provisions a reversionary interest may descend to grantor's heirs, Smith v. School Dist. No. 6 of Jefferson County, Mo., 250 S.W.2d 795, Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 33 A.L.R.2d 1431, at least in the absence of a judicial determination that the interest was merely a personal right. We have been cited to no case directly in point on the wording of the Burnam deed.

We have, however, an adjudication upon a petition to ascertain and determine title which ruled, although in general terms, that John F. Burnam retained only a personal reversionary right under the 1867 deed. The nature of the reversion was an issue directly raised in the petition. By that decree, if final and not subject to an effective attack, it would fellow that Burnam's reversionary right did not descend to his heirs. We may take judicial notice of the fact that Burnam was dead in 1962. He did not aattempt to convey or assign his possibility of reversion, for the abstract of the record (an exhibit here) shows that when he conveyed his land to one Clark, his description called for one acre less than the amount which his own survey showed. Regardless of the power or lack of power to convey such an interest, Donehue v. Nilges, 364 Mo. 705, 266 S.W.2d 533, 45 A.L.R.2d 1150; Smith v. School Dist. No. 6 of Jefferson County, Mo., 250 S.W.2d 795, Burnam thus evidenced an intent not to assign or convey his reversionary interest in the school tract. In his deed to Clark, Burnam not only omitted one acre, but he warranted that he would defend the title to the land thus conveyed against the lawful claims of all persons whomsoever. We will not attribute to him an intent to include in such a deed the school tract which he had conveyed about one year earlier, retaining only a possibility of reverter. Our ruling on this point is in accordance with the memorandum opinion filed by the trial court, which we may consider as containing its...