Schuster v. Myers
| Decision Date | 07 March 1899 |
| Citation | 50 S.W. 103,148 Mo. 422 |
| Parties | Schuster v. Myers et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Sullivan Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed in part; reversed in part.
John M Swallow and A. W. Mullins for appellants.
(1) The plaintiff, to be entitled to recover in this case, had to show legal title in himself to the strip of ground sued for. Kingman & Co. v. Sievers, 143 Mo. 525; Clay v Mayr, 144 Mo. 380; Cox v. Arnold, 129 Mo. 337; Ford v. French, 72 Mo. 250; West v Bretelle, 115 Mo. 661; Howard v. Tracy, 118 Mo. 639; R. S. 1889, sec. 4626. The quitclaim deed from the Pfeiffer heirs to the plaintiff conveyed nothing. Where two lots or parcels of ground are separated by a line only, as in this case, a description is absurd and meaningless that undertakes to convey "three feet more or less," in "between" such lots. (2) The defendants' objections to this deed should have been sustained for the reasons stated: (a) That those heirs owned nothing there to convey; (b) and that there was no ground for the deed to apply to. In brief, the deed described and included no land whatever. (3) The temporary injunction was improvidently granted by the judge of the probate court, and the circuit court erred in sustaining it and making the injunction perpetual. McKinzie v. Matthews, 59 Mo. 102; Christian v. St. Louis, 127 Mo. 109; Bailey v. Wade, 24 Mo.App. 186; Burgess v. Kattleman, 41 Mo. 480.
Calfee, Swanger & Calfee for respondent.
(1) The call for quantity in the deeds may be resorted to to make that certain which would otherwise be uncertain. Davis v. Hess, 103 Mo. 31. (2) If there is a strip between lots 5 and 4, the deed from Henry Pfeiffer's heirs conveyed it to plaintiff; if there is no space between said lots, then the strip in question undoubtedly belongs to lot four and plaintiff acquired title to it by his deed from Henry Pfeiffer of December 6, 1890. In no event could defendants be injured by the admission in evidence of the deed of March 6, 1896. (3) Ejectment was the appropriate action in this case and under proper averments in the petition, supported by the requisite proof, an injunction pendente lite might be granted as auxiliary to the action at law. Smith v. Jameson, 91 Mo. 13. (4) On the face of his petition plaintiff was entitled to the relief demanded and the temporary injunction was granted by the probate court as a matter of course. R. S. Mo. sec. 5491. (5) The finding of the court being for the plaintiff on the first count of his petition, he was therefore clearly entitled to the equitable relief prayed for and the circuit court committed no error in making the injunction perpetual. Chancery will interfere by injunction where the acts done or threatened are ruinous to the property trespassed upon, "or are of a character to permanently impair its just enjoyment in the future." Echelkamp v. Schrader, 45 Mo. 505. (6) No allegation of insolvency was necessary as the facts stated show that the injury threatened would have been irreparable within the legal definition of that term. McPike v. West, 71 Mo. 199; Bank v. Kercheval, 65 Mo. 682; R. S. Mo., sec. 5510.
The petition in this case is in two counts, the first in ejectment for the possession of a strip of land fronting south on the public square in the town of Green City, Sullivan county, three feet in width and one hundred and thirty feet in length, lying and being immediately adjoining lot five on the west, and off of the east side of lot four in block three in said town. The second count is for injunctive relief, alleging as ground therefor that defendants were then excavating for the purpose of erecting a brick store house partly upon the land in question of which plaintiff is the owner, and if permitted to do so his injury would be irreparable.
A temporary injunction was granted upon the second count.
Both parties claim title under Henry Pfeiffer, as the common source.
The answer, after denying all the allegations in the petition, alleges that defendants are the owners of the land by inheritance from their father, Henry Myers, to whom they allege Henry Pfeiffer conveyed it by deed on the thirty-first day of December, 1881, and that they and their father have been in actual adverse possession of it ever since.
In 1880 Henry Pfeiffer, being the owner of the forty acre tract of land upon which the town of Green City is located, laid out and platted said town into lots, blocks, streets, alleys, and a public square. The south side of block three in said town fronts south on the north side of the public square, and was supposed and intended at the time it was surveyed as aforesaid, to be one hundred and eighty feet wide from east to west and was divided into three lots with a supposed and intended frontage of sixty feet each, fronting south and extending north one hundred and thirty feet, to an alley. These lots, commencing on the west, were numbered four, five and six. Lots five and six, being the center and east lots, were sub-divided into three lots each with a frontage of twenty feet. Henry Pfeiffer, in disposing of these subdivided lots, began on the east and sold off business lots twenty feet wide and so described them in the deeds. He continued to sell off these sub-divided lots until about 1882, when he sold the west twenty feet of lot five to Henry Myers, the father of the defendants in this case and from whom they derive title.
Henry Myers, immediately after his purchase of said lot, erected a business building thereon covering the entire width of the lot, twenty feet. In 1890 Henry Pfeiffer sold lot four, the west lot of said block three, to Henry W. Schuster, the plaintiff in this case, who at once erected a business house on what he supposed to be the west forty-four feet thereof. About or near the time that Henry Pfeiffer sold to plaintiff as aforesaid, the defendants with the permission of Henry Pfeiffer, constructed a stairway on the west side of their building.
About 1892 the plaintiff, Schuster, built an addition sixteen feet wide on the east side of his first building, thus making his building sixty feet wide. It was then discovered that there was a vacant, wedge-shaped strip about three feet wide at the front or south end and running to a point about one hundred feet north, lying between plaintiff's and defendants' buildings, that is, the north end of plaintiff's building immediately adjoined defendants' building, but at the south end there was nearly three feet vacant space between them.
In January, 1896, defendants' building was destroyed by fire and they began making preparations to rebuild. But instead of preparing to build on their old foundation, they commenced to excavate and arranged to place their west wall along and immediately adjoining plaintiff's east wall, thus seeking to make their new building about twenty-three feet at the front or south end instead of twenty feet, the width of their lot and old building. Then plaintiff obtained a quitclaim deed from the heirs of Henry Pfeiffer, the deceased, and at once began this action of ejectment to recover possession of said strip, with a count for injunctive relief.
On the trial plaintiff read in evidence a warranty deed, dated December 6, 1890, from Henry Pfeiffer to himself, conveying to him lot four in block three in the village of Green City.
He next offered in evidence a quitclaim deed, dated March 6, 1896 from the heirs at law of Henry Pfeiffer, deceased to Henry W. Schuster, the plaintiff, conveying all that portion of land lying between the west twenty feet of lot five, and lot four in block three, containing a frontage of three feet more or less in said village. Defendants objected to the reading of...
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