Podlesak v. Wesley, 18178

Citation849 S.W.2d 728
Decision Date24 March 1993
Docket NumberNo. 18178,18178
PartiesHoward E. PODLESAK and Marilyn D. Podlesak, Plaintiffs-Respondents, v. Charlie WESLEY, Jr., Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Charles M. Wesley, Waynesville, for defendant-appellant.

Kevin C. Shelton, Osage Beach, for plaintiffs-respondents.

GARRISON, Judge.

This appeal is from the entry of a summary judgment quieting title to real estate in respondents (plaintiffs). Plaintiffs claim to own the land in question in fee simple. Appellant (defendant) claims an interest in a part of that land by reason of a collector's deed obtained by him as a result of a tax sale. Both parties focus the issues of this case on the sufficiency of the following description from the collector's deed:

Section 20 Township 39 Range 16

Pt Lot 8 Beg at Pt on W' Ly R/W 30' Road

that is 1229' N & 522' W SE

08 4.0 20.0 000 001 002.002 1 Plaintiffs filed suit to quiet title, alleging that the collector's deed was void ab initio because the description was so imperfect that it failed to describe the land conveyed with reasonable certainty as required by § 140.530. 2 The petition also alleged that defendant had executed a quit claim deed in favor of plaintiffs, which he later sought to rescind, but which would support a decree quieting title if the collector's deed is valid.

Defendant denied that the collector's deed was void ab initio, alleged that his quit claim deed to plaintiffs lacked adequate consideration, and denied that the quit claim deed would deprive him of title if the collector's deed were found valid. Defendant also filed a counterclaim alleging the quit claim deed was induced by misrepresentations and requested that it be considered canceled and plaintiffs "be adjudged to reconvey the said premises to the defendant."

Plaintiffs' motion for summary judgment 3 followed and was supported by the affidavit of Lonny Allen, a registered Missouri land surveyor, stating that the description in the collector's deed "is an incomplete description and fails to describe any real property with reasonable certainty and it is not possible to determine what parcel, if any, is intended to be conveyed thereby." Defendant responded with suggestions and the affidavit of Richard Elgin, a registered Missouri professional engineer and also a registered Missouri land surveyor, saying: "That I am reasonably skilled in determining land locations and based upon the partial legal description, including the land parcel identification number, that the aforesaid legal description describes real property with reasonable certainty and it is possible to locate said land."

The trial court entered summary judgment, finding that the description "is insufficient, invalid and void as it fails to describe any real property with reasonable certainty," and further that "the inclusion of the Camden County Assessor's land parcel identification number does not establish a proper legal description for real property." 4 This appeal followed.

Defendant's counterclaim was not disposed of nor was there an "express determination that there is no just reason for delay" as authorized by Rule 74.01. Ordinarily, this would require us to review jurisdiction sua sponte and dismiss the appeal because the judgment lacks finality. Bay's Texaco Serv. & Supply Co., Inc. v. Mayfield, 792 S.W.2d 50, 51 (Mo.App.1990). Here, however, the parties appear to be in agreement that defendant's interest in the subject property, if any, has its origin in, and would be determined by, the validity of the collector's deed in question. In addition, the trial court, in its docket entry, observed that the counterclaim was rendered moot by the summary judgment. Under these circumstances, we agree with the opinion in White v. American Republic Ins. Co., 799 S.W.2d 183, 195 (Mo.App.1990), where this court said, "... we find the judgment for plaintiff necessarily constituted a rejection of defendant's counterclaim and that the judgment is appealable despite omission of an adjudication on defendant's counterclaim." As the court said in Pathway Financial v. Schade, 793 S.W.2d 464, 466 (Mo.App.1990), "[t]he trial court's grant of summary judgment contains an implicit ruling against defendants on their counterclaim." We will, therefore, proceed to discuss the merits of this appeal.

Plaintiffs, in the argument portion of their brief, question whether defendant's Points Relied On comply with Rule 84.04(d). We agree that neither complies with the strict requirements of the Rule. Where possible, however, our preference is to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief. State ex rel. Aimonette v. C. & R. Heating & Serv. Co., 475 S.W.2d 409, 412 (Mo.App.1971). Here, we can discern the gist of the complaints from the argument portions of the briefs and will in this instance consider the same. Hounihan v. Farm Bureau Mut. Ins. Co. of Mo., 523 S.W.2d 173, 174 (Mo.App.1975).

The issue here is whether the trial court erred in entering summary judgment. Review of a summary judgment is equivalent to review of a court-tried case and must be sustained if, as a matter of law, the judgment is sustainable on any theory. Roberts Fertilizer, Inc. v. Steinmeier, 748 S.W.2d 883, 886 (Mo.App.1988). To be entitled to a summary judgment, plaintiffs had the burden to demonstrate that there was no genuine issue as to any material fact and that they were entitled to a judgment as a matter of law. Rule 74.04; Earl v. State Farm Mut. Auto. Ins. Co., 820 S.W.2d 623, 624 (Mo.App.1991). Great caution should be exercised in granting a summary judgment because it borders on the denial of due process. Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App.1985). Our review is of the entire record in the light most favorable to the party against whom the summary judgment was entered. Fisher v. Scott & Fetzer Co., 664 S.W.2d 662, 663 (Mo.App.1984). In doing so, we give that party all reasonable inferences which may be drawn from the evidence in determining whether a genuine issue of fact exists. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987).

In reviewing the propriety of the summary judgment here, the question is whether there are genuine issues concerning the sufficiency of the legal description in the collector's deed which would prevent plaintiffs from being entitled to a judgment as a matter of law.

Section 140.530 provides, in pertinent part:

No sale or conveyance of land for taxes shall be valid ... if the description is so imperfect as to fail to describe the land or lot with reasonable certainty....

Plaintiffs argue that the description (with or without the land parcel identification number) is violative of § 140.530.

We agree that the description here, if taken alone without reference to extrinsic evidence, obviously fails to describe the property intended to be conveyed "with reasonable certainty." The conclusion that no one could locate the real estate based on the description alone is not solely determinative here, however. It is not required that a deed contain a sufficient description so that, based on it alone, the property can be located. Mason v. Whyte, 660 S.W.2d 383, 387 (Mo.App.1983).

We are mindful that the case of Costello v. City of St. Louis, 262 S.W.2d 591 (Mo.1953), cited by plaintiffs, (which was later overruled on other issues) refers to the necessity of descriptions in tax proceedings being sufficient, in and of themselves, to describe the property being conveyed. Leuck v. Russell, 632 S.W.2d 40, 43 (Mo.App.1982), however, explained that the references in the Costello case, supra, requiring the "full description" are to statutes concerning land delinquent lists and not to collector's deeds. This court held in Leuck that the "reasonable certainty" requirement for tax deeds is no different than is required for deeds generally.

In construing a deed, the intention of the grantor, as manifested by the entire instrument, is to be ascertained and the property being conveyed may be identified by reference to extrinsic evidence. Monroe v. Lyons, 98 S.W.2d 544, 546-47 (Mo.1936). In Monroe, the court quotes the following, with approval:

Extrinsic facts pointed out in the description may be resorted to to ascertain the land conveyed, and the property may be identified by extrinsic evidence, as in the case of records of the county where the land is situate.

98 S.W.2d at 547.

The rule of construction was stated another way in Hamburg Realty Co. v Woods, 327 S.W.2d 138, 150 (Mo.1959), where the court said:

In general, any description in a deed is sufficient if it affords the means of identification of the property. 26 C.J.S. Deeds § 30, p. 640; Mathews v. O'Donnell, 289 Mo. 235, 233 S.W. 451, 457. Extrinsic evidence is always...

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