Robb v. N. W. Elec. Power Co-op.

• Decision Date: 14 January 1957
• Docket Number: No. 2,No. 45223,45223,2
• Citation: 297 S.W.2d 385
• Parties: J. A. ROBB and Ethyl Robb, Appellants, v. N. W. ELECTRIC POWER COOPERATIVE, Respondent
• Court: Missouri Supreme Court

Page 385

297 S.W.2d 385

J. A. ROBB and Ethyl Robb, Appellants, v. N. W. ELECTRIC POWER COOPERATIVE, Respondent.

No. 45223.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1957.

Robert F. Sevier, William E. Turnage, Liberty, for appellants.

Phil Hauck, Eugene E. Andereck, Russell N. Pickett, Pickett, Andereck & Hauck, Trenton, for respondent.

STOCKARD, Commissioner.

Appellants have appealed from an adverse judgment in their suit in equity to set aside and declare null and void a written instrument by which they conveyed to respondent a perpetual easement for a right-of-way for the construction, operation and maintenance of an electric transmission line over land which they own by the entirety. The trial court found the issues generally for respondent. 'In cases wherein the judgment sought or rendered directly determines a title controversy involving an easement the appellate jurisdiction is in this court.' Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721, 723.

Respondent contends that there is no appealable judgment, and we must first dispose of that question. Appellants' petition was in three counts. The first was in equity to set aside the easement, and the other two were actions at law for damages alleged to have resulted from acts of respondent in constructing and maintaining an electric transmission line on appellants' land. A separate trial was had on count I. Supreme Court Rule 3.29, 42 V.A.M.S., provides that when a separate trial of any claim is had 'before the court without a jury,' the court may order a separate judgment entered which shall be deemed a final judgment for the purposes of appeal, or the court may enter a separate interlocutory judgment and order it held in abeyance until other claims are determined, in which event appeal shall not lie until a complete judgment disposing of all claims is entered. The court had the discretion to order a separate judgment on the separate non-jury trial of this claim, and such separate judgment would be deemed a final judgment for the purposes of appeal. Pizzo v. Pizzo, 365 Mo. ----, 295 S.W.2d 377. The only thing lacking in this case is an express order for a separate judgment. The court did enter a separate judgment, and, under these circumstances, the entry of the separate judgment should be construed as an order for a separate judgment within the meaning of Supreme Court Rule 3.29. Pizzo v. Pizzo, supra. See also Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343.

There is but little dispute concerning the facts. On January 22, 1951, appellants signed an instrument, which we shall refer to as an easement, in which respondent was named as grantee whereby they conveyed for consideration a right-of-way over land owned by them for the construction, operation and maintenance of an electric transmission line. The easement was signed by appellants in the presence of and at the request of Lois Harrison Davis, a representative of respondent. On the face of the easement, which was introduced in evidence by appellants, there appears the statutory form of an acknowledgment in which appellants purportedly acknowledged the instrument as their free act and deed before Richard W. Foster, a notary public. Appellants both testified without contradiction, and with no evidence to the contrary, that Davis was alone with them when they executed the easement; that they never acknowledged its execution before a notary public; that they were not acquainted with, had never seen, and did not know a person by the name of Richard W. Foster. The easement was recorded September 21, 1951.

Respondent constructed the electric transmission line on the land of appellants with their knowledge, and at no time did they enter any protest or objection thereto until after construction was completed.

The evidence establishes that the acknowledgment was fraudulent in the respect that the appellants did not acknowledge to the notary public that they executed the instrument as their free act and deed. However, appellants do not deny the execution and delivery of the easement; in fact this is admitted. There is no question but that when they signed the easement and delivered it to the representative of respondent they intended thereby to grant to respondent the rights set forth by its terms. Appellant alleged certain misrepresentations on the part of respondent in pro uring the easement, but this issue was abandoned. Therefore, the issues in this lawsuit are reduced to the sole contention of appellants that the addition to the deed granting the easement of a fraudulent acknowledgment, which made it possible to record the instrument, constituted an alteration which voided the instrument and the rights thereby granted.

Appellants cite and rely on three cases: Carson v. Woods, Mo.Sup., 177 S.W. 623; Kempf v. Phillips Pipe Line Company, Mo.App., 61 S.W.2d 422; and Hardt v. Phillips Pipe Line Company, Mo.App., 85 S.W.2d 202. It is necessary to discuss these three cases in detail.

In Carson v. Woods, Rowena Woods had employed Bagby & Bagby as her agent to sell certain land, and the agent had, by oral agreement, contracted to sell the land to G. S. Davis and H. M. Davis, whom we shall refer to as the buyers. Mrs. Woods had no actual knowledge of this oral agreement. Although William Carson had knowledge of the agreement between Mrs. Woods' agent and the buyers, he and his father, G. H. Carson, prevailed upon Mrs. Woods to sign a memorandum of an agreement to sell the land to them. Shortly after this memorandum was signed the buyers learned of it, and they went to Mrs. Woods and explained to her the agreement between them and her agent. Mrs. Woods then executed a deed to the buyers for the land. While the buyers were with Mrs. Woods and were in the process of getting the deed signed, the Carsons tried to place their memorandum of agreement on record, but the recorder refused to record it. G. H. Carson then went to a notary public and without the knowledge or authority of Mrs. Woods signed the memorandum as a witness. The notary public then affixed the statutory acknowledgment and the Carsons had the memorandum recorded. Suit was brought by the Carsons for specific performance of the alleged contract as shown by the recorded memorandum agreement.

The court stated that the act of G. H. Carson in signing the memorandum as a witness was a material alteration which voided the agreement because this gave the holder thereof a right he would not have otherwise possessed, that is, he could acknowledge the same and thereby prove the execution thereof and have the memorandum spread of record as a cloud upon the title to the land therein described. After discussing at length the question of the effect of G. H. Carson signing the memorandum as a witness, and after reviewing cases from this and other jurisdictions, the court stated that the issue of an alteration of the agreement was not pleaded in the answer, and therefore the proof thereof 'might not have been competent to defeat the contract as a matter of law.' The basis of the opinion was then stated to be that plaintiffs were 'knocking at the portals of equity,' and that 'To gain an undue advantage for themselves and against these defendants [Mrs. Woods and the buyers] they [the Carsons] did an unauthorized and to that extent a wrongful act. In order to cast a cloud upon plaintiffs' title [the court undoubtedly meant defendants' title] and to antedate of record the filing of the Davis deed, they mutilated and changed, without authority of the maker, the instrument of writing they are asking to enforce. This circumstance, when taken with the other facts of this case, ought to have defeated the specific performance of this contract in equity.' We are in agreement with this reasoning and with this result.

The facts of the other two cases cited and relied on by appellants are in each case as follows: A representative of Phillips Pipe Line Company obtained from the plaintiffs a deed granting an easement for the construction of a pipe line across their lands. After the pipe line was constructed, plaintiffs sued in equity to set aside the easement because of misrepresentation in the procurement thereof and because of a contended material alteration of the instrument evidencing the easement. The evidence established that after the easement was signed by the plaintiffs and delivered to the pipe line company, there was affixed thereon a fraudulent acknowledgment in that the grantors never...