Orrick v. Bower
| Decision Date | 31 October 1859 |
| Citation | 29 Mo. 210 |
| Parties | ORRICK et al., Defendants in Error, v. BOWER et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
1. Where an administrator's deed conveying lands refers to the report of sales made by the administrator to the county court, such report, together with a plat of lots sold accompanying it, will be regarded as incorporated with the deed for purposes of construction and interpretation; they will be admissible in evidence to determine the boundaries of the land conveyed by the administrator's deed.
2. A call for quantity in a deed must yield to a more definite description by metes and bounds.
Error to St. Charles Circuit Court.
This was an action in the nature of an action of ejectment to recover possession of a piece of land containing one 62-100 acres. Both plaintiffs and defendants claim title under Nicholas Janis, deceased--the plaintiffs by virtue of deeds from the heirs of said Janis, and the defendants under a deed from the administrator of said Janis. The administrator in this deed recited an order of sale made by the county court of St. Charles county, the proceedings under this order, the report of the administrator to the court, and the approval thereof by the court. Accompanying this report was a plat of the lots sold. Lot eight, as marked out upon this plat, did not include the land in controversy, and contained three 97-100 acres only. This report and the accompanying plat were admitted in evidence against the objection of defendants. The defendants asked the court to “decide that if the estate of Janis, at the date of the administrator's sale, owned the land south of lot eight, then the deed will be extended south so as to include the quantity of five 59-100 acres mentioned in said deed; that the call in said deed for its southern boundary can not limit the quantity called for in said deed.”
C. Wells, for plaintiffs in error.
I. The court erred in admitting the report of the administrator to limit the amount of land conveyed.
II. The court also erred in admitting the plat attached to the report. It conflicts both with the report and the deed.
III. The court erred in refusing the instruction asked.
E. A. Lewis, for defendants in error.
I. The administrator's report and the accompanying plat were properly admitted. The quantity expressed in the deed is to be taken as a mere estimate and not a part of the description; a discrepancy therein can not disturb the location of the boundary lines thus ascertained.
The first point that will be noticed is whether the court below erred in admitting as evidence the report of sale made by the administrator and the plat accompanying it. It is urged first, that the report could not be admitted to limit the amount of land conveyed by the deed to defendants, because it is not referred to in the administrator's deed; and second, that the plat attached to the report was improperly admitted, because it conflicts with both the report and deed.
The report of a sale of real estate made by an administrator is the foundation of the title, and its approval by the court is his only authority for executing a conveyance; and when it is referred to in the deed, it thus becomes a part of it, and they are to be construed together as one instrument.
In this case, the statute on the subject of administration sales of real estate seems to have been duly complied with. The deed of the administrator shows that a full report of his proceedings was made to the county court, and that the same was duly approved. It is true, that there is no express reference in the deed to the plat; but the plat is referred to and made a part of the report, and thus becomes virtually a part of the deed, as much so as if it had been incorporated into the body of it.
The admissibility of the plat as evidence and its effect are different things, which seem to have been confounded in the second point made by counsel. If the plat, by reference in the deed, becomes a part of the latter, it is admissible for that reason irrespective of any supposed conflict that may appear between them. What its effect may be in this respect, or how far one may control the other in ascertaining the description of the land conveyed, is a question of interpretation, and not one of competency. In such cases, the writing referred to may or may not qualify the descriptive parts of the conveyance, and one may correct an erroneous description contained in the other, or even vary or add to as well as explain it.
But the objection is not well taken for another reason. The acceptance of the deed was an acceptance of the plat, which was a part of it; and the...
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