Walker v. Garner

• Decision Date: 26 May 1914
• Docket Number: No. 16659.,16659.
• Citation: 258 Mo. 494,167 S.W. 955
• Parties: WALKER v. GARNER.
• Court: Missouri Supreme Court

167 S.W. 955

258 Mo. 494

WALKER v. GARNER.

No. 16659.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. BOUNDARIES (§ 3*) — DESCRIPTION — RELATIVE IMPORTANCE OF CONFLICTING ELEMENTS.

While metes and bounds control the call for quantity, in the absence of reason to the contrary, where it was apparent from the report of commissioners in partition that the tract set off as homestead and dower was intended to be 126 poles long and wide enough to contain 82 acres, it will be so construed, notwithstanding the metes and bounds would give a greater width.

2. REFORMATION OF INSTRUMENTS (§ 3*) — JURISDICTION — REMEDY AT LAW.

Where part of a description is inconsistent with other parts, and the remaining part is sufficient to designate the land, a remedy is afforded at law by disregarding the false description and giving effect to the other calls, and a resort to equity for the correction of the description is unnecessary.

3. BOUNDARIES (§ 5*) — DESCRIPTION — ARTIFICIAL MONUMENTS AND MARKS.

Where there was a discrepancy between the metes and bounds and the call for quantity in a partition report, and a stone was found at one end of a fence coinciding with the call for quantity, it will be presumed to have been put there by the surveyor who aided the commissioners, in compliance with Rev. St. 1909, § 11323.

4. BOUNDARIES (§ 5*) — DESCRIPTION — ARTIFICIAL MARKS AND MONUMENTS.

The commissioners' report in partition and accompanying survey, approved by the court, gave the widow's "dower" and "homestead" thereby set off a definite location and designation, and an old boundary fence claimed to have been located on the surveyor's line cannot be moved unless it be shown that the original survey located it differently, notwithstanding a variance from the metes and bounds.

5. PARTITION (§ 110*) — ACTIONS — SALE — TITLE OF PURCHASER.

Where a partition decree of a homestead and dower tract described it in accordance with the partition report setting it off to the widow, which passed only the quantity specified, notwithstanding a conflict with one of the distances, and such quantity was marked by a fence well known to the purchaser, the deed passed only the quantity comprised in the homestead and dower tract, though it and the notice of sale only described it by metes and bounds, and the adjoining owner was a party to the partition.

Faris, J., dissenting.

Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Action by Louis C. Walker against James D. Garner. Judgment for plaintiff, and defendant appeals. Reversed.

James W. Garner, of Kansas City, and Martin E. Lawson, of Liberty, for appellant. Ralph Hughes and Simrall & Simrall, all of Liberty, for respondent.

ROY, C.

This is an ejectment suit, in which the plaintiff recovered judgment, and defendant has appealed.

In the spring of 1883, the exact date not given, in a partition suit among the widow and heirs of James C. Garner, the commissioners made a report which contained the following:

"Homestead.

"Quantity and quality being by us relatively considered, we first set off and delivered unto said Letitia A. Garner her homestead in all said real estate, including therein the mansion house of said James Connoway Garner, deceased, at the time of his death, to the value of fifteen hundred dollars ($1,500), which homestead is situated in the county of Clay aforesaid, and consists of the parcel and is meted, bounded, and described as follows: It is a part of the southwest quarter of section No. 33 in township No. 54 of range No. 32, containing 38 acres, thus bounded, viz.: Beginning at a point on the west line of said section No. 33 which is 50 poles north from the southwest corner of said section No. 33, thence running east 80 poles to a point, thence north 76 poles to a point, thence west 80 poles to a point on the west line of said section No. 33, and thence south on said west line to the point of beginning. To have and to hold the said parcel unto said Letitia A. Garner for and during her natural life as and for her homestead in all the real estate mentioned in said judgment and decree.

"Dower.

"And having set off and delivered the said homestead, and finding that said Letitia A. Garner was, besides, entitled to dower, we did next assign, admeasure, and deliver unto said Letitia A. Garner, quantity and quality being by us relatively considered, as and for her dower in the real estate mentioned in said judgment and decree, a parcel thereof which we appraised at the value of fifteen hundred dollars ($1,500), and which parcel is situate in the county of Clay aforesaid, and is meted, bounded, and described as follows, viz.: It is a part of the southwest quarter of section No. 33 in township No. 54 of range No. 33, thus bounded, viz.: Beginning at the southwest corner of said section No. 33, thence running east over the south line of said section No. 33 a distance of 108 poles to a point on said south line, thence north 126 poles to a point, thence west 28 poles to a point, said point being the northeast corner of said dower, thence south 76 poles to a point, thence west 40 poles to a point on the west line of said section No. 33, and thence south over said west line 40 poles to the point of beginning, containing 44 acres. To have and to hold the said parcel unto said Letitia A. Garner for and during her natural life as and for her dower in all the real estate mentioned in said judgment and decree.

"And having set off and delivered said homestead, and assigned and admeasured and delivered said dower, we did next part, divide, set off, and deliver all the residue of all the real estate mentioned in said judgment and decree, first charging the said Mary Simms, Jane Deshon, Amanda Garner, and James D. Garner with the amounts ascertained and declared in said order and decree as follows:

"First. We first, quantity and quality being by us relatively considered, parted, divided, assigned, and delivered unto said Louis B. Garner. * * *

"Second. We next, quantity and quality being by us relatively considered, parted, divided, assigned, and delivered unto the said Amanda Garner. * * *

"Third. We next, quantity and quality being by us relatively considered, parted, divided, assigned, and delivered unto the said Mary Simms and Richard A. Simms, her husband, in right of the said Mary (having charged the said Mary Simms with the sum of six hundred dollars [$600] as directed by said judgment and decree), the certain parcel of said residue of said real estate, appraising the same to be of the value of nine hundred dollars ($900), situate in said county of Clay, containing 33 acres, and meted, bounded, and described as follows, viz.: It is a part of the southwest quarter of section No. 33 in township No. 54 of range No. 32, thus bounded, viz.: Beginning at the center of said section No. 33, thence running west over the subdivisional line 80 poles to a point on said subdivisional line, thence south 34 poles to the northeast corner of said homestead tract, thence east 28 poles to the northeast corner of said dower tract, thence south over the east line of said dower tract 46 poles to a point in said east line, thence east 52 poles to a point on the subdivisional line, and thence north 80 poles over the subdivisional line to the point of beginning. To have and to hold the said parcel, in severalty, unto said Mary Simms and Richard A. Simms, her husband, in right of said Mary, forever, as and for their full share, part, and purpart of all the said residue of said real estate.

"Fourth. We next, quantity and quality being by us relatively considered, parted, divided, assigned, and delivered unto said James D. Garner (having charged him with the sum of three hundred dollars [$300] as directed in said judgment and decree) the certain parcel of said residue of said real estate, appraising the same to be of the value of twelve hundred dollars ($1,200), situate in said county of Clay, containing 68 acres, and meted, bounded, and described as follows, viz.: It is the southwest quarter of the southeast quarter, and a part of the southwest quarter of section No. 33 in township No. 54 of range No. 32, the whole parcel bounded as follows, viz.: Beginning at a point on the south line of said section No. 33, which is distant 108 poles from the southwest corner of said section No. 33, which point of beginning is the southeast corner of said dower tract, thence running east over said south line a distance of 132 poles to the southeast corner of said southwest quarter of the southeast quarter of said section No. 33, thence north over the subdivisional line 80 poles to the northeast corner of said southwest quarter of the southeast quarter of said section No. 33, thence west 132 poles to a point on the east line of said dower tract, thence south, over said east line, 80 poles to the point of beginning. To have and to hold the said parcel in severalty unto said James D. Garner, his heirs and assigns, forever, as and for his full share, part, and purpart of all the said residue of said real estate.

"Fifth. And next, quantity and quality being by us relatively considered, we parted, divided, assigned, and delivered unto said Jane Deshon and Thomas C. Deshon, her husband, in right of said Jane. * * * And we annex hereto (and make part hereof) plats of the said lands situate in said counties of Clay and Clinton, respectively marked `C' and `D,' showing the location of said lands, their outlines, the said homestead, dower and parcels assigned, with their situation with reference to each other, and other matters illustrative of this report.

"And we further make report that in the execution of our trust under said judgment and decree, and in the making and acknowledgment of this report, we were engaged three days; that we were compelled to employ the professional services of Reuben J. Stepp, surveyor of Clay county, in making measurements and areas and running lines, for the...