Snadon v. Gayer, 10060

CourtCourt of Appeal of Missouri (US)
Citation566 S.W.2d 483
Docket NumberNo. 10060,10060
PartiesJohn A. SNADON, Jr., Almira Snadon Probst, and Rosemary Snadon Taylor, formerly Rosemary Snadon Squires, Plaintiffs-Respondents, v. Ray GAYER and Grace Gayer, husband and wife, L. Paul Herndon and Irma Maxine Herndon, husband and wife, H. R. Gayer and Marjorie Gayer, husband and wife, and William R. Feldmann and Mabel Feldmann, husband and wife, Defendants-Appellants.
Decision Date10 April 1978

Louis W. Cowan, Lilley, Cowan & Love, Springfield, for plaintiffs-respondents.

Robert L. Stemmons, Jr., Mount Vernon, for defendants-appellants.

Before STONE, P. J., and HOGAN and TITUS, JJ.

STONE, Presiding Judge.

In this court-tried action, plaintiffs John A. Snadon, Jr., Almira Snadon Probst and Rosemary Snadon Squires (the Snadon heirs), alleging themselves to be the owners of a hereinafter-described tract containing some ten to eleven acres (the 10-acre tract) in Lawrence County, Missouri, sought in Count I a judgment and decree ejecting the parties defendant then in possession of the 10-acre tract, in Count II a mandatory injunction requiring defendants to remove at their expense all buildings and structures on the 10-acre tract, and in Count III damages allegedly sustained by reason of defendants' occupancy of that tract and erection of certain structures thereon. In their answer, all of the defendants joined issue and asserted that title to the 10-acre tract was vested in defendants William R. Feldmann and Mabel Feldmann, and defendants Feldmann also sought to quiet title in themselves or, if unsuccessful in doing so, to recover $10,000 at the reasonable market value of permanent improvements made by defendants on that tract. §§ 524.160 and 524.170. 1 On March 20, 1975, the court filed a memorandum opinion in which he initially acknowledged having "had great difficulty in deciding this case . . . primarily because it is one of those rare cases where there are considerable equities on both sides" and, after recording findings of fact and conclusions of law, entered a final judgment and decree (a) that the Snadon heirs, as tenants in common, are the owners of a fee simple absolute in the 10-acre tract and are entitled to immediate possession thereof, (b) that none of the defendants have any right, title or interest in or to that tract; (c) that defendants are perpetually enjoined and restrained from interfering with possession of the 10-acre tract by the Snadon heirs, and (d) that defendants Feldmann "shall forthwith quit said property and deliver possession thereof to (p)laintiffs (the Snadon heirs), and shall forthwith remove all structures and other property placed by them upon said real estate . . . ." On defendants' appeal to this court, we review the case in accordance with the mandate of Rule 73.01, subd. 3, as authoritatively construed in Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976).

The 10-acre tract was part of a much larger tract containing 1600 acres, more or less, known as the goat ranch, which lay astride the common Lawrence County-Dade County boundary line with roughly half of the total acreage in Lawrence County south of that line and the other half in Dade County north of that line. Plaintiffs herein, John A. Snadon, Jr., Almira Snadon Probst and Rosemary Snadon Taylor, inherited the goat ranch upon the death of their father, John A. Snadon, Sr., in December 1960; and on May 13, 1963, plaintiffs (joined by the spouses of the two Snadon heirs then married) made a conveyance by warranty deed to Ray Gayer and Grace Gayer, his wife, and L. Paul Herndon and Erma Maxine Herndon, his wife (plaintiffs' Ex. C), in which the property was described as follows:

"That much of the following described property which lies West of Missouri Highway No. 39 in Lawrence County, Missouri: All of the West Half (W1/2) of Lots 5 and 6 of the Northeast Quarter (NE1/4) of Section 2, Township 29, Range 27; the South Half of the East Half of Lot 6 of the Northeast Quarter (NE1/4 ) of Section 2, Township 29, Range 27, except that part of Lot 6 East of the railroad right-of-way ; Lots 5, 6, 7, 8 and 9 of the Northwest Quarter (NW1/4) of Section 2, Township 29, Range 27; also, all of Lots 5, 6, 8, 9 and the East Half (E1/2) of Lots 4 and 7 of the Northeast Quarter (NE1/4) of Section 3, Township 29, Range 27, all in Lawrence County, Missouri." 2 (All emphasis herein is ours.)

The only plat or drawing of the above-described property was defendants' Ex. 4, which was accepted by all parties as accurately reflecting the relative location of the property lines, Missouri State Highway No. 39, and the railroad right-of-way. In the first drawing, infra, which is a facsimile of Ex. 4, the land admittedly conveyed by the Warranty deed of May 13, 1963 (Ex. C), is designated by //// and the contested parcel (the 10-acre tract) is designated by ////. 3 Scholia added by us for clarification are enclosed in parentheses. All other notations appear on Ex. 4. The second drawing is an enlargement of the East Half of Lot 6 and the disputed 10-acre tract as it was described in the deed from defendants Gayer to defendants Feldmann in July 1972.

(See following illustrations)

The genesis of the factual chain of events leading to this litigation was "in late April or early May" 1963, when defendant Ray Gayer of Ash Grove, Missouri, talked with William R. L. Probst, the husband of Almira Snadon Probst, who was one of the three Snadon heirs, in Springfield, Missouri, concerning purchase of the goat ranch. At that first meeting, Gayer indicated that he would pay $35 per acre. 4 A few days later after Probst had contacted the Snadon heirs, he had a second meeting with Gayer at which Mrs. John A. Snadon, Jr., also was present. Probst testified that he then told Gayer "we couldn't sell the property on the east side of the road (the disputed 10-acre tract) for the same (price per acre) as that part on the west side of the road (Highway 39)"; and, when Gayer responded "that it (the 10-acre tract) wasn't worth any more than that to him and that he didn't care if he had it or not," Probst said "we will keep it then."

Although the goat ranch had not been surveyed and the precise acreage had not been ascertained, negotiations were conducted on the assumption that the entire ranch contained approximately 1,600 acres. At $35 per acre, the sale price for that acreate would have been $56,000. Probst explained that, when Gayer expressed disinterest in the 10-acre tract, "we took off $350" which reduced the sale price to $55,650, the sum agreed upon and paid.

Albeit the foregoing suggests that the Snadon heirs would have sold the 10-acre tract if a satisfactory offer had been made, there also was testimony by both Probst and his wife, Almira Snadon Probst, to the effect that the Snadon heirs "would keep the (10-acre tract) for the grandsons (w)e have five boys between us."

Defendant Gayer's testimony in the same evidential area was not altogether consistent either within itself or with the above-noted testimony of Probst. E. g., in the course of direct examination by his counsel Gayer testified:

"Q. In your discussions and meetings with Probst, was any mention made by him or you in regard to this (10-acre tract) on the east side of the road?

"A. There was not.

"Q. Did he mention anything to you about reserving any portion of that (g)oat (r)anch ?

"A. I think so I (Interrupted)

"Q. Were you under the impression you were purchasing all of the (g)oat (r) anch?

"A. I was under the impression I was buying all of the Snadon estate land lying west of the Frisco Railroad."

Whatever preliminary impression any of the parties may have had, on May 13, 1963, the three Snadon heirs and the spouses of the two heirs then married, accompanied by their counsel, assembled with Ray Gayer and L. Paul Herndon in the office of Gayer's counsel, and on that occasion the Snadon heirs and their spouses executed and delivered to Gayer and Herndon the warranty deed containing the hereinbefore-quoted property description (the deed). 5

It will be observed that the initial general language of the description contained in the deed calls for "That much of the following described property which lies West of Missouri Highway No. 39 in Lawrence County, Missouri," but that the second of the following four specific, self-contained and self-sufficient descriptions, to wit, "the South Half of the East Half of Lot 6 of the Northeast Quarter (NE1/4) of Section 2, Township 29, Range 27, except that part of Lot 6 East of the railroad right-of-way," is that of the 10-acre tract all of which is East of Missouri Highway No. 39.

The ambiguity thus engendered, although not apparent on the face of the deed, was a latent ambiguity, well-defined as being "an uncertainty not appearing on the face of the instrument, but which is shown to exist for the first time by matter outside the writing." 30 Am.Jur.2d Evidence § 1073, l.c. 218. See Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1064(4) (1937); Becker v. Workman, 530 S.W.2d 3, 6(1) (Mo.App.1975); Hardin v. Ray, 404 S.W.2d 764, 769-770 (Mo.App.1966); 2 Jones on Evidence § 488, p. 940 (5th Ed. 1958); 9 Wigmore on Evidence (3rd Ed.) § 2472, l.c. 239, and cases collected in the 1977 pocket supp. at pp. 85-90, incl. " 'Such an ambiguity, it is practically agreed by all the cases, may be explained and removed by parol evidence; having been revealed by matter outside the instrument, it may be removed in the same manner.' 68 A.L.R. Anno. p. 5, quoted with approval in Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1064(4) (1937). And see Walters v. Tucker, 281 S.W.2d 843, 847(1) (Mo.1955)." Becker v. Workman, supra, 530 S.W.2d at 6(1). 6

In the instant case, certain evidence and permissible inferences drawn therefrom afford substantial support for the trial court's judgment that the Snadon heirs are the owners as tenants in common of a fee simple absolute in the...

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