Walkup v. Evinger
| Decision Date | 17 May 1983 |
| Docket Number | Nos. WD33450,WD33466,s. WD33450 |
| Citation | 653 S.W.2d 383 |
| Parties | Dale Q. WALKUP, Plaintiff-Respondent-Appellant, Gerald L. Fischer, Gleta Gail Fischer, and Toni A. Powell, Cornelia C. Trotter and Nathan P. Trotter, Plaintiffs, v. Lee E. EVINGER and Betty Evinger, Defendants-Cross-Claimants-Appellants- Respondents, Robert S. Parker and Judith M. Parker, Defendants-Cross-Claimants-Respondents, William T. Helman and Pearl K. Helman, Defendants-Cross-Claimants-Respondents, David D. Helman, Trustee, J.E. Browning, Trustee, Defendants. |
| Court | Missouri Court of Appeals |
Lawrence R. Brown, Stinson, Mag & Fizzell, Kansas City, for plaintiff-respondent-appellant Walkup and plaintiffs Fischers, Powell, and Trotters.
Charles W. Gardner, Lee's Summit, for defendants-cross-claimants-appellants-respondents Evingers.
Carl R.J. Sniffen, Stubbs & Mann, Kansas City, for defendants-cross-claimants-respondents Parkers.
Thomas Sullivan, Downey, Sullivan & Fitzgerald, Kansas City, for defendants-cross-claimants-respondents Helman.
Before DIXON, P.J., and KENNEDY and LOWENSTEIN, JJ.
This case involves cross appeals from a court-tried case involving title to real estate, reformation of deeds, and ejectment. The trial court entered a judgment for plaintiffs Walkup 1 on the title issue quieting title in them to the disputed tract. The court also entered a judgment ordering reformation of the deed to the defendants Evinger by their immediate predecessor in title, the defendants Parker, who had cross-claimed for that relief. The deed to Parkers by the defendants Helman was also reformed upon their cross-claim. The defendants Evinger have appealed those judgments. Plaintiff Walkup cross appeals from the trial court's denial of damages for detention of the property despite the entry of a judgment in favor of Walkup on the ejectment count.
The issues in this case turn upon principles of conveyancing. To assist in the understanding of the issues, a plat follows which is prepared from an aerial photograph upon which has been superimposed the government survey designation of the forty acres involved in the dispute.
The forty acres involved in the dispute is the Northeast Quarter of the Northeast Quarter of Section 13, Township 48, Range 30. Also critical to the issues is the creek or stream designated as Sni-A-Bar. The aerial photograph has superimposed upon it the approximate location of the present main channel of Sni-A-Bar, designated by the wider white line. Also shown is a loop of creek bed, not now a part of the main channel of Sni-A-Bar, indicated by a narrower white line. The evidence from older maps and the physical characteristics of the land indicates that the channel enclosing tract "B" was at one time a channel of Sni-A-Bar Creek. Utilization of that channel in early conveyancing descriptions dividing the Northeast Quarter of the Northeast Quarter of Section 13, Township 48, Range 30 into several areas likewise demonstrates the existence of a channel of the creek at the location of the narrow white line.
The dispute centers on tracts "A" and "B" on the sketch. Tract "C" is conceded to be the property of Evinger. The difficulty, however, arises in connection with the descriptions in the chain of title to Tract "C". Tract "C", from 1870 until 1951, was described in all conveyances as 15 acres off the E/2 of the NE/4 of the NE/4, all of said 15 acres lying east of Sni-A-Bar Creek or as 15 acres off the east side of the NE/4 of the NE/4.
Cora A. Lea acquired Tract "C" by that description in 1912. In 1952 her heirs conveyed to H.C. Bessemer and Juanita E. Bessemer by a description which reads: "All that part of the Northeast Quarter of the Northeast Quarter lying east of Sni-A-Bar Creek." This description made no reference to the land as being in the East Half of the Quarter Quarter Section or as being off the east side, as all previous deeds had described the land in Tract "C".
Thereafter and at various dates, Bessemers conveyed to William T. Helman and Pearl K. Helman; Helmans conveyed to Robert S. Parker and Judith M. Parker; Parkers conveyed to Lee E. Evinger and Betty J. Evinger. Each of these deeds utilized the description in the deed to Bessemers, which omitted the reference to the East Half of the Northeast Quarter of the Northeast Quarter.
Evingers claim under those deeds title to the tracts labeled "A" and "B" and thus to all of the Northeast Quarter of the Northeast Quarter, or forty acres. They make the claim based on reading the description as "all of the Northeast Quarter of the Northeast Quarter" east of the channel marked with the wide white line, which they contend is Sni-A-Bar Creek, thus including tracts "A" and "B" within the description. This reading of the description, even as it was erroneously altered in 1952, ignores the language "all that part of the Northeast Quarter of the Northeast Quarter of ..." east of Sni-A-Bar Creek, which implies some part of the quarter quarter west of the creek, and not the entire quarter quarter.
On the other hand, the evidence discloses a record title in the Walkups to Tracts "A" and "B" from the United States patent to the date they acquired title. The evidence discloses that Walkup and his predecessors in title were in possession and farming the land from at least 1941 to 1979, when Evingers took forcible possession of it and began to farm the disputed tracts "A" and "B".
There is no need to encumber this opinion with a detailed statement of the evidence. There is no factual issue with respect to possession, or the land intended to be conveyed by Evingers' predecessors in title. Helman and Judith Parker testified in support of Walkup's claim and adversely to Evingers' claim. Cornelia Trotter and Gerald L. Fischer, predecessors in title to Walkup, testified to the possession and boundaries of Tracts "A" and "B" in Walkup and themselves. Evingers knew at the closing that the title they were receiving was not insurable because they received a refund of the title premium and written notice of the defects in the title.
On the title issue, the defendants Evinger assert that an abstract was improperly received in evidence, that collections of certified copies of conveyances were improperly received in evidence, and that plaintiffs failed to meet the burden of proof necessary to quiet title in plaintiffs.
The detail of the evidence offered and the way in which it was offered must be stated to rule the first two issues raised by appellants Evinger. The evidence for the plaintiffs Walkup as to record title to the disputed tracts "A" and "B" and the land marked tract "C", conceded to be the land of Evingers, was presented with meticulous care and detail. Walkups presented as an expert witness a lawyer and title examiner for a title company who had examined the abstract of title offered in evidence. This expert witness testified from his notes made in the examination of the titles as to the chain of title to all of the tracts. The witness also identified, by reference to that chain of title, by book and page, and by grantor and grantees, all of the certified copies of conveyances offered in evidence.
The admissibility of the abstract itself need not be determined in this case. Walkup points out in his brief that in this court-tried case, even if the abstract is inadmissible, the error, if any, in its admission is not fatal. This for the simple reason that the proof in this case does not depend upon the abstracts. The deeds, which form the Walkup chain of title from the government down to the conveyance to him, were in evidence by certified copies of the records of the Recorder of Deeds for Jackson County. The certified copies were offered to show chain of title. The records of the defendants Evingers' title--from the patent down to the deed from the heirs of Cora Lea, as well as the deeds containing the different description from 1952 when the heirs of Cora Lea conveyed, to the conveyance by which the defendants Evinger claim title--were also in evidence by means of certified copies of the Recorder's records. The simple issue is whether these deeds were properly put in evidence by the plaintiffs.
Omitting transcript references and the single citation offered, the entire argument of the defendants Evinger is contained in the following three sentences:
Exhibit [sic ] 4, 5, 6, 7 and 8 were introduced simultaneously into evidence as "various deeds." They were not even identified but were received over defendants' objections.
In fact, these are not individual deeds but essentially abstracts of title (containing, e.g. affidavits; ...) and thus inadmissible as evidence.
It is very difficult to perceive the exact ground for the complaint of the defendants Evinger. The only objection at the time the documents were received in evidence was "no proper foundation." At that point counsel for the plaintiffs indicated they were being offered under the certificate of the recorder's office as official records. The defendants made no further objection to their admission, and the court indicated they would be received.
It is beyond argument that a certified copy of a deed may be read in evidence under certain conditions. Section 490.420 RSMo 1978 specifically authorizes the introduction of the certified transcript of the record of the recorder's office, subject only to the condition that the proponent of the offer show that the instrument is lost or not within the power of the party wishing to use the same. That statute has existed in our law in that form since at least 1874. In the present statutes, as it has been for many years, it is preceded by § 490.410, which defines the instruments that may be offered in evidence as those that are acknowledged and recorded in accordance with the statutes.
In the early case of Akins v. Adams, 256 Mo. 2, 9, 164 S.W. 603, 605 (1914), Judge Lamm,...
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