Presnell v. Headley
| Decision Date | 03 November 1897 |
| Parties | Presnell et al., Appellants, v. Headley |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.
Affirmed.
James Baker for appellants.
(1) Said deed of trust and trustees' deed are void for uncertainty in description. Neither of them describes the land sued for. A more glaring attempt to make a deed, by the court, can not be found in the books. (2) The rule of law is "if an estate can not be ascertained by the description in the grant, the deed fails altogether." 3 Washburn on Real Property, 426, 428; 2 Devlin on Deeds, sec. 1010; 6 Peters, 345; 10 Wallace, 270; 6 Gray, 554. (3) That parol evidence is not admissible to contradict, add to, subtract from, control or vary a written instrument. Wood v Murphy, 47 Mo.App. 539; Tracy v. U. I. Co., 104 Mo. 193; Evans v. W. B. M. Co., 118 Mo. 548; Welsh v. Edmisson, 46 Mo.App. 282; Evans v Greene, 21 Mo. 208; West v. Bretelle, 115 Mo. 653. (4) No equitable relief could be granted against plaintiff, even in a direct proceeding in equity, admitting the legal insufficiency of the deed and asking for its reformation. The mortgage of her property was made to secure an indebtedness of J. A. Presnell, for which she was not liable personally. Shroyer v. Nickell, 55 Mo. 264. (5) The question is not what a married woman intended to convey, or what words she intended to use, but strictly what she did use. Her deed does not constitute a contract. Bagby v. Emberson, 79 Mo. 139; Hoskinson v. Adkins, 77 Mo. 540. (6) The plea of the statute of limitation is not available for the defendants. Dyer v. Wittler, 89 Mo. 86.
T. J. Delaney for respondent.
(1) If part of the description is inconsistent with other parts, proceeding from a mistake or error, and the remaining parts are sufficient to designate the lands sold, the remedy is by disregarding the false description and giving effect to the other calls. Evans v. Greene, 21 Mo. 208; Kronenberger v. Hoffner, 44 Mo. 194; Shewalter v. Pirner, 55 Mo. 231. (2) The contemporaneous acts of the parties are admissible to show the construction adopted by them, and resort may always be had to the circumstances under which the deed was made. Evans v. Greene, 21 Mo. 208; Lakenan v. Railroad, 36 Mo.App. 370; Marvin v. Elliott, 99 Mo. 616; Wolfe v. Dyer, 95 Mo. 545. (3) The call "east 60 rods" being repugnant to every other call in the deed and to the call for quantity and inconsistent with the manifest intention of the parties, will be rejected. Jamison v. Fopiano, 48 Mo. 195; Gibson v. Bogy, 28 Mo. 478; Brown v. Gibson, 82 Mo. 529. (4) With the call east sixty rods rejected, then we have every part of the deed reconciled. Then the law will supply this omission. Hoffman v. Riehl, 27 Mo. 554; Burnett v. McCluey, 78 Mo. 676.
This is an action in ejectment to recover the possession of certain real estate situate in the city of Springfield, Greene county, Missouri, described in the petition as being part of the north one half of the northwest one fourth of section 14, township 29, range 22, and contained within the following metes and bounds: "Commencing at the northwest corner of said section and running thence south forty-five and one half rods, thence east one hundred and sixty rods, thence north five and one half rods, thence west eighty-eight rods, thence north forty rods, thence west seventy-two rods to the place of beginning." The tract thus described is shown by the following diagram and contains about twenty-three and a half acres:
[SEE DIAGRAM IN ORIGINAL]
The plaintiffs are the heirs at law of John A. and Mary E. Presnell and as such claim title to the premises of which the defendant is in possession claiming title under mesne conveyances from them.
On the ninth of July, 1870, the said John A. and Mary B. who were husband and wife, being the owners of the premises, by their deed of trust of that date conveyed to Selby & Jamison in trust to secure the payment of certain notes therein described, to the St. Louis Mutual Life Insurance Company "the following described property or real estate situate in the city of Springfield, Greene county, Missouri, to wit: Beginning at the northwest corner of section 14, township 29, range 22, thence running along the western section line forty-five and one half rods, thence running eastwardly sixty rods, thence north five and one half rods, thence west eighty-eight rods, thence north forty rods to the north line of section 14, thence west seventy-two rods to the place of beginning, containing twenty-three and one half acres more or less." Of which description literally followed the following is a diagram:
[SEE DIAGRAM IN ORIGINAL]
In 1872 this deed of trust was foreclosed. The trustee's deed containing the same description as in the first trust deed, and the defendant by mesne conveyances has acquired whatever title the purchaser at the trustee's sale received.
The defendant in his answer admitted possession, denied the other allegations of the petition, and pleaded the statute of limitations. The finding and judgment was for the defendant and the plaintiff appeals. The suit was instituted on the twenty-seventh day of December, 1894. The defendant purchased and went into possession in 1882. The land was then fenced and had been in the possession of his grantors for some years prior thereto. It was admitted that the wife, Mary B. Presnell, who held the legal title to an undivided fourth of the premises at the time of the execution of the deed of trust, died in 1874, and that the husband, John A. Presnell, who held the legal title to the remaining undivided three fourths of the premises at the time of the execution of the deed of trust, died in 1891, and the court found from the evidence that the defendant and his grantors had held the open, notorious, exclusive and continuous adverse possession for more than ten years prior to the death of the said John A.
The defendant does not seek a reformation of the deed of trust but insists that the intention of the grantor to convey the land in suit is manifest on the face of the deed. The trial court sustained this contention, and this ruling presents the decisive question in the case. In Evans v. Greene, 21 Mo. 208, it was ruled that while it is not competent in an action involving the legal title only, to correct a mistake in the deed, yet "if part of the description is inconsistent with other parts, proceeding either from the mistake of the writer or the error of the grantor, and the remaining part is sufficient to designate the land sold, the remedy is afforded by disregarding the false description and giving effect to the other calls." To the same effect is West v. Bretelle, 115 Mo. 653, 22 S.W. 705. In Hoffman v. Riehl, 27 Mo. 554, it was held that "where there is a palpable omission in the description of a deed, it may be supplied by construction." In Gibson v. Bogy, 28 Mo. 478, that "the intention of the parties, as shown by the entire deed, should govern in its construction; where certain of the words used appear repugnant to the other portions of the deed and to the general intention of the parties, they should be rejected." In Jamison v. Fopiano, 48 Mo. 194, that ...
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