Slovenksy v. O'Reilly
| Decision Date | 23 July 1921 |
| Docket Number | No. 22144.,22144. |
| Citation | 233 S.W. 478 |
| Parties | SLOVENSKY et al. v. O'REILLY et al. |
| Court | Missouri Supreme Court |
Appeal from Crawford County Circuit Court; L. B. Woodside, Judge.
Action by John H. Slovensky and others against John F. O'Reilly and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
A. H. Harrison, of Steelville, for appellants. Harry Clymer, of Steelville, for respondents.
The petition in this case is in two counts. The first count is an ordinary petition in ejectment for two small tracts of land, being parts of the southeast quarter of section 5, township 38 north, range 3 west, in Crawford county. One tract is said to contain 6.50 acres, and the other 4.50 acres, and both are described by metes and bounds, not necessary to further mention at this point. The second count in the petition is in the usual form of an action to quiet title. The answers are diverse in lines of defense. John F. and Mary D. O'Reilly in answer to the first count (the count in ejectment) admit that they are in possession of the 6.50-acre tract and deny all other allegations of said count. As to the second count (the action to quiet title) these defendants aver that they are the owner of the 6.50-acre tract, and claim the title thereto, and further aver that the plaintiffs have no interest therein. In a second paragraph of the answer the following is stated:
"And for further answer to both the first and second counts in plaintiff's petition these defendants aver that they are the owners in fee and in possession of all that part of the southeast fractional quarter of the southwest fractional quarter of section 5, township 38 north, range 3 west, lying north of the original bed of the Meramec river, according to the original survey made by the United States, and which includes the first tract or parcel of land described in plaintiffs' petition and containing 6.50 acres, more or less, and that plaintiffs have no right, title, or interest in or to said tract; that the second tract of land described in both the first and second counts in said petition is the original bed of the Meramec river, and so designated as such by the original survey made by the United States government at the time said section 5 was surveyed, and when patents were issued to the lands in said section 5, the river as then located was designated as the boundary lines of the tracts or parcels of land lying along said river, and that all of the interest either the plaintiffs or defendants have in or to said last-described tract or parcel of land is such right, title, or interest as they may have under the law by virtue of owning the lands on opposite sides of the river bed; that all the claim these defendants assert to said second described tract or parcel of land is such right, title, and interest as they may have thereto under the law by virtue of being the owners of the land lying north of said river bed and being adjacent thereto."
The defendants pray that their title to the 6.50 acres be adjudged and confirmed in them, and that the court determine the respective interests of the parties to the 4.50-acre tract. Defendant Thomas Woods by answer to first count averred that he was in the possession of the 6.50-acre tract as tenant for the defendants O'Reillys, and denied all other allegations of said count, as well as each and every allegation of the second count. The answer of Posey Woods was a general denial to each count. Reply placed in issue all new matter in the respective answers. A jury was waived, and the trial was had before the court. The court found against plaintiffs upon both counts, and decreed title in defendants as to the 6.50-acre tract. As to the 4.50 acres the court found that neither had title or interest therein. Costs were adjudged against plaintiffs in favor of all the defendants. From such judgment the plaintiffs have appealed.
I. The issues made by the pleadings are issues at law, and not in equity. The case was properly tried as one at law. Although tried before the court, the findings of fact made by the judge have the force and effect of a verdict by a jury. If these findings are supported by substantial evidence, they are binding in this court. The findings incorporated in the judgment are general ones, to the effect: (1) The issues on both counts are found for defendants; (2) that defendants John P. and Mary E. O'Reilly are the owners in fee of the 6.50-acre tract, and that plaintiffs have no interest therein; and (3) that the 4.50-acre tract is a part of the old bed of the Meramec river, and neither parties, plaintiffs or defendants, have any interest therein. As said, these findings, if supported by substantial evidence, are final upon an appeal in this, a law case.
II. The material facts, under the rules of law, supra, are therefore the deciding factors in the case. Sections 5 and 8 were surveyed by the government in 1821. The plat and field notes of this survey are in the record. This shows that the Meramec river ran across the southwest quarter of section 5, township 38, range 3. It entered shortly south of the northwest corner of said quarter section, and passed out at the southeast corner. This plat shows 50.61 acres in the southwest quarter of said section south of the then river. This tract was patented to one Reeves in May, 1878, and the patent describes it as 50.61 acres south of the Meramec river, in the southwest fractional quarter of said section 5, township 38, range 3 west. The next patent in evidence is one for 18 acres from the government to Clarence E. McKinley, in January, 1908, which 18 acres is described as the southeast fractional quarter of the southwest fractional quarter of said section 5, north of the Meramec river. In November, 1885, Benj. E. Reeves and wife conveyed to Sarah E. McKinley all the north half of the northwest quarter of section 8, and the south half of the southwest fractional quarter of section 5, south of the Meramec river, containing in all 129.73 acres. The acreage granted is the exact acreage shown by the government plat, mentioned, supra, because the north half of the northwest quarter of section 8 is shown to contain 79.12 acres, which added to the 50.61 acres in section 5, makes the 129.73. From plaintiffs' showing of the record title the conveyances ran through divers persons with the same description, until finally in November, 1898, it is conveyed back to Sarah E. McKinley, with the same description as above set out. In 1903 Sarah E. McKinley and husband conveyed by the identical description this 129.73 acres of land to Clarence E. McKinley. Up to this point we have two separate tracts of land in the name of Clarence E. McKinley, i. e., the 18 acres conveyed to him by United States patent in 1908, and the 129.73 acres deeded to him by Sarah E. McKinley in 1906, as stated, supra.
In 1898 during heavy floods the channel of the Meramec shifted to the north, and the 6.50-acre tract was left in the south of the new channel. This was a part of the 18-acre tract according to the survey of 1821. Clarence E. McKinley's patent said:
"Eighteen acres according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor General, which said tract has been purchased by Clarence B. McKinley."
This patent was received by Clarence McKinley 10 years after the change of channel in 1898, and 2 years after he acquired the original Reeves farm of 129.73 acres in 1906. Up to this point all parties appear to have been recognizing and acting upon the government survey. When Clarence E. McKinley received this patent to 18 acres, formerly north of the Meramec river, 3.50 acres of it was between the old and new channels of that stream, and had so been since 1898. The trouble in the case comes in at this point. Clarence E. McKinley contracted to sell certain lands to James Thomas Kitchen on November 5, 1908. This contract (not recorded) describes the land as:
"The north half of the northwest quarter of section 8, and the south fractional half of the southwest quarter (south of Meramec river) of section 5."
The number of acres was not given. Rut a year later Clarence E. McKinley and wife by general warranty deed conveyed to J. T. Kitchen as follows:.
"All of the south half of the southwest fractional quarter (south of Meramec river) of Sec. 5, and the northwest quarter of the northwest quarter and the northeast fractional quarter of the northwest quarter of Sec. 8, Twp. 38, R. 3 W., containing 120.73 acres, more or less."
This is the first time the term "more or less" appears in the conveyances of the old Reeves farm. Theretofore it had been designated as 129.73 acres.
In 1913 Kitchen and wife deeded to H.H. & Charles F. Daugherty by the following description:
"All of the southwest fractional quarter south of the Meramec river of Sec. 5, and the north half of northwest quarter of Sec. 8, all in Twp. 38, R. 3 W."
The Daughertys on January 23, 1915, conveyed to plaintiffs by the same description. This (excluding a suit to quiet title in 1910, and which we may have occasion to revert to later) is the record evidence upon which plaintiffs base their claims of title to the 3.50-acre tract, and the 4.50-acre tract.
In 1915 the respondents O'Reillys purchased of Clarence E. McKinley the 18-acre tract which was patented to him by the government in 1908, under the same description employed and used in the patent. Their claim is based on those two instruments, and the possession they had of such 3.50-acre tract. The oral evidence we take next.
III. Respondents have challenged the accuracy and sufficiency of the appellants' abstract of record, and have filed herein an additional abstract of record. This additional abstract stands unchallenged, and, in so far as it states facts contrary to those stated in appellants' abstract, we are bound by the additional abstract.
By the oral evidence it is shown that Sarah E....
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