Robinson v. Korns

• Decision Date: 31 May 1913
• Citation: 157 S.W. 790
• Parties: ROBINSON et al. v. KORNS et ux.
• Court: Missouri Supreme Court

157 S.W. 790

ROBINSON et al. v. KORNS et ux.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. ADVERSE POSSESSION (§ 8) — STREETS — VACATION.

Defendant's original grantor platted the land in controversy as a street in 1857, and, although a fence ran through the middle of it, it was not removed, but was maintained there for nearly 50 years by subsequent owners who in each case held to the fence. Rev. St. 1855, c. 158, § 8, in force at that time, provides that maps and plats of towns and villages shall be a sufficient dedication to vest the fee in the county, in trust and for the uses therein expressed. Rev. St. 1909, § 1886, which was then in force, provides that nothing contained in any statute of limitation shall extend to any lands appropriated to public use, while section 9506, which was enacted subsequent to the dedication, provided for the vacation of such streets. Held, that despite Rev. St. 1909, § 10446, providing that nonuser by the public for a period of 10 years continuously of any public road shall be deemed an abandonment of the same, the rights of the county to the dedicated land in question are not barred by possession of the dedicator and his abutting grantees; for, the highway not being necessary while it was being so held, no adverse rights could be acquired.

2. REFORMATION OF INSTRUMENTS (§ 19) — GROUNDS — MISTAKE.

To secure the reformation of a deed on the ground of mistake, the mistake must be in the terms of the deed and not in the contract, and it must also be mutual and not unilateral.

3. EVIDENCE (§ 397) — PAROL EVIDENCE RULE.

So strong is the legal presumption that a written contract contains all the terms of the agreement between the parties that parol evidence will not be heard in an action thereon to vary or contradict its terms.

4. REFORMATION OF INSTRUMENTS (§ 45) — BURDEN OF PROOF.

In a suit in equity to correct a written contract on the ground of mistake, the party asserting the mistake has the burden of overthrowing by evidence that is clear and convincing the presumption that the written instrument expressed the agreement, and consequently a deed will not be reformed by changing the description so as to include land in a highway which the grantor did not own instead of other land which he did, upon a mere showing that the grantor pointed to a fence in the highway as the point of commencement of the tract sold, but that after the parties consulted an attorney as to his right to the land in the street, he executed a deed which did not include the land so located.

Appeal from Circuit Court, Buchanan County; L. J. Eastin, Judge.

Ejectment by Gertrude Robinson against Avery Korns and another, who filed an answer seeking affirmative relief, and impleaded Samuel J. Turner and wife as defendants. From a judgment for the first-named defendants, plaintiff and the impleaded defendants appeal. Reversed and remanded, with directions.

James Limbird, of St. Joseph, for appellants. Duncan & Utz, of St. Joseph, for respondent.

BROWN, C.

Ejectment brought March 16, 1910, by Gertrude Robinson against the defendants Korns and wife for possession of a lot in St. Joseph described in the petition as "the east eighty feet of lots five (5) and six (6) Ashland, as shown by plat thereof: being a subdivision of a part of the northwest quarter of section three (3) township fifty-seven (57) range thirty-five (35) in Buchanan county, Missouri." The defendants answered, impleading Samuel J. Turner and wife, who were made parties defendant against their protest. The answer of the Kornses consisted of (1) a general denial, and (2) a plea that prior to September 12, 1907, they sold Mr. Turner a piece of land described as follows: "Commencing six hundred and sixty feet north of southeast corner of the southwest quarter (¼) of the northwest quarter (¼) of section three (3) township fifty-seven (57) range thirty-five (35); thence west eighty (80) feet; thence south to the south line of lot six (6), Ashland; thence east eighty feet along said south line of lot six (6) to the east line of said southwest quarter (¼) of the northwest quarter (¼) of section three (3) township fifty-seven (57) range thirty-five (35); thence north to the place of beginning." That on that day they executed to Turner a warranty deed in which the land so sold was described as in the petition. The difference between the land described in the petition and in the answer is that the lot described in the answer lies 30 feet farther east than that described in the petition, so that it includes the east 50 feet of lots 5 and 6, Ashland, and 30 feet lying immediately east of it to the middle of a street appearing upon the Ashland plat. The answer further states that Turner and wife, on March 14, 1910, sold and delivered to plaintiff the possession of the same property sold Turner by the defendants, and executed to plaintiff a deed in which they erroneously described the land as it was described in the deed to them from Korns and wife, and the plaintiff thereupon took possession of the ground that was actually sold and pointed out to her and also insisted on taking possession of the other 30 feet lying immediately west of it, making 110 feet in all. The prayer of the answer is that the erroneous description in the deed of defendants to Samuel J. Turner and in the deed from Turner and wife to plaintiff be reformed and corrected so as to conform to the true description set forth in the answer, and for general relief. Turner interposed a general demurrer, and when it was overruled answered, putting in issue the affirmative averments of the answer, and the plaintiff replied to the same effect.

It appeared upon the trial that in 1857 one Fred Smith, being the owner of the land included, filed a town plat of Ashland in the recorder's office of Buchanan county; that this in all respects conformed to the act then in force concerning the plats of towns and villages (R. S. 1855, c. 158) is not questioned. At that time Mr. Smith had a fence extending north and south along the east line of the southwest quarter of the northwest quarter of the section, which, by repairing and replacing, has been maintained in the same position ever since. This fence is in the middle of a street appearing on the plat by the name of Chambers avenue. Lots 5 and 6, as platted, front on this street. There is also a traveled road along the north side of lots 5 and 14 extending west from Chambers avenue to another platted street called Ashland avenue, which is also open. Chambers avenue has never been improved, and the abutting owners on each side seem to occupy the land of which it consists to the fence, although there is no evidence of valuable improvements having been placed on it since the plat was made, or of any claim of ownership of the ground in the street until this controversy arose. Smith continued to own the land in question, including lots 6 and 13 and 5 and 14, until July, 1867, when he conveyed to one Glick, and by mesne conveyances it was acquired by defendant Avery Korns in 1893 from one Strignitz and wife, by warranty deed, using the same description with reference to the lot numbers of the Ashland plat as are used in the deed from Smith to Glick. These four lots constituted a solid body of land something more than 200 feet north and south and 500 feet more or less east and west. The deeds of Strignitz to Korns, from Korns to Turner, and from Turner to plaintiff, all referred directly to the plat of Ashland for the description of the lots. The two latter deeds describe the land conveyed as follows: "All the east eighty feet of lots five (5) and six (6), Ashland, as shown by plat thereof, being a subdivision of a part of the northwest quarter of section three (3), township fifty-seven (57), range thirty-five (35)."

Of his sale and conveyance of the land to Turner Mr. Korns testifies that he took Mr. Turner down there and showed him the east end of the ground and they traded on that principle; he was to have the east 80 feet up to the fence. He did not think there were any lots mentioned any more than the 80 feet of ground until they came to describe it in the deed. He was then at a loss to describe it, and some one said that the east 80 feet of lots so and so would make a fair description of the 80 feet. He presumed he was deeding him the 80 feet of ground lying next to the fence. He attempted to do so. Nothing was said about lots 5 and 6 at that time. He then proceeded as follows: "I heard of this controversy getting up, so I went to Mr. Limbird's office with Mr. Turner before I sold it — Mr. Turner came out there and asked me to come and see about the ground. I went down to Mr. Limbird's office; he spoke about this street being dedicated there. I asked him a few questions about it, and he said he didn't know this and didn't know that, but as far as making any agreement with Mr. Limbird or anybody else in regard to that 80 feet west of that road is a positive falsehood. I never agreed under any circumstances to make any other proportion. Mr. Turner and I went away from his office to Mr. Austin's office, and we took the abstract and was looking at it. It shows I have 530 feet of ground on the north line. I told him, I said I couldn't see where there was anything different from the 80 feet I showed him and conveyed to him I could do. I says, `I don't want to do anything unfair,' and I told him I would investigate. I didn't agree to do anything with him, and when he says I agreed to make a deed for 80 feet west of that road he tells a falsehood." He also said that he never was in Mr. Limbird's office except the one time that he went there with Mr. Turner, and then they could not agree on anything. He never went back. Ashland had been included in the city of St. Joseph about a year at the time of the trial.

The cause was tried before the court without a jury. The facts were found substantially as stated in the answer, and judgment was...