Walters v. Tucker

• Decision Date: 09 December 1957
• Docket Number: No. 1,No. 45927,45927,1
• Citation: Walters v. Tucker, 308 S.W.2d 673 (Mo. 1957)
• Parties: Rose L. WALTERS, a/k/a Rose Leona Walters, Plaintiff (Respondent), v. Charles D. TUCKER, Sr., and Myrtle Tucker, his wife, Defendants (Appellants)
• Court: Missouri Supreme Court

Page 673

308 S.W.2d 673

Rose L. WALTERS, a/k/a Rose Leona Walters, Plaintiff (Respondent), v.Charles D. TUCKER, Sr., and Myrtle Tucker, his wifeDefendants (Appellants).

No. 45927.

Supreme Court of Missouri, Division No. 1.

Dec. 9, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 13, 1958.

David J. Tompkins and Ackert, Giesecke & Tompkins, St. Louis, for appellants.

L. A. Robertson and Alexander & Robertson, St. Louis, for respondent.

VAN OSDOL, Commissioner.

Action to try, ascertain and determine title to described real estate, a narrow strip of land in Webster Groves, St. Louis County; and for injunctive relief.Defendants by amended answer sought the relief of reformation of a deed; alleged title by adverse possession; and also prayed for injunctive relief.The trial court found for plaintiff, Rose L. Walters, and against defendants, Charles D. Tucker and Myrtle Tucker, on all issues; decreed that plaintiff was and is in possession and the owner in fee simple of the described real estate; and ordered that defendants be enjoined from interfering with plaintiff's use and enjoyment of the property.Defendants have appealed.

Herein upon appeal, defendants-appellants contend the evidence was clear and cogent, and overwhelming in establishing that a mutual mistake in the description of the property was made in an original deed and in subsequent conveyances, and that plaintiff-respondent had notice or knowledge thereof; and that, under the evidence, defendants-appellants are entitled to a decree reforming the deed.Additionally, defendants-appellants contend the trial court also erred in finding for plaintiff because, they say, the evidence established title in defendants by adverse possession.

The is the second appeal in this case.SeeWalters v. Tucker, Mo.Sup., 281 S.W.2d 843, wherein the facts pertaining to the origin of this title controversy are stated, and wherein appears a reproduction of a survey which is of aid in locating the narrow tract, title to which is in dispute.

Upon retrial of the case, on remand, the transcript upon the first appeal was considered in evidence, and the parties introduced additional evidence tending to support and to refute the factual bases for the relief of reformation (which, as indicated supra, defendants on remand had sought by amended answer); and for a judgment decreeing title by adverse possession, as well as for injunctive relief.

In initially endeavoring to lend clarity to the instant opinion, we quote this court's former statement of the undisputed facts pertaining to the general location of the property, and of the undisputed source of the claimed titles of the respective parties, 281 S.W.2d 843, at page 844, as follows,

'* * * Plaintiff and defendants are the owners of adjoining residential properties fronting northward on Oak Street.Plaintiff's property, known as 450 Oak Street, lies to the west of defendants' property, known as 446 Oak Street.The controversy arises over their division line.Plaintiff contends that her lot is 50 feet in width, east and west.Defendants contend that plaintiff's lot is only approximately 42 feet in width, east and west. * * *

'The common source of title is Fred F. Wolf and Rose E. Wolf, husband and wife, who in 1922 acquired the whole of Lot 13 of West Helfenstein Park, as shown by plat thereof recorded in St. Louis County.In 1924, Mr. and Mrs Wolf conveyed to Charles Arthur Forse and wife the following described portion of said Lot 13:

'The West 50 feet of Lot 13 of West Helfenstein Park, a Subdivision in United States Survey 1953, Twp. 45, Range 8 East, St. Louis County, Missouri, * * *.'

'Plaintiff, through mesne conveyances carrying a description like that above, is the last grantee of and successor in title to the aforesaid portion of Lot 13.Defendants, through mesne conveyances, are the last grantees of and successors in title to the remaining portion of Lot 13.

'At the time of the above conveyance in 1924, there was and is now situate on the tract described therein a one-story frame dwelling house (450 Oak Street), which was then and continuously since has been occupied as a dwelling by the successive owners of said tract, or their tenants.In 1925, Mr. and Mrs. Wolf built a 1 1/2 story stucco dwelling house on the portion of Lot 13 retained by them.This house (446 Oak Street) continuously since has been occupied as a dwelling by the successive owners of said portion of Lot 13, or their tenants.'

Again referring to the former opinion, 281 S.W.2d 843, at page 847, it will be observed this court held that the description in the deed under which plaintiff claims title, to wit: 'The West 50 feet of Lot 13 * * *,' is on its face, and when applied to the ground, clear and free of ambiguity; and that extrinsic evidence could not be considered to contradict the unambiguous deed or to make a description of other or lesser land than described in the unambiguous deed.The fact that defendants had not sought reformation of the deed on the ground of mistake was noted; and the judgment for defendants was reversed and the cause remanded for further proceedings not inconsistent with the views expressed in the opinion.

But upon the retrial of the case on the supporting issue of mutual mistake raised by the amended answer, evidence, extrinsic to the deed, including parol evidence, but relevant in tending to show the true transaction, agreement or intention of the parties to buy, sell, and convey less or different ground than that described in the unambiguous deed, was admissible on the ultimate issue of defendants' right to the relief of reformation based on mutual mistake.Vol. 3, Pomeroy's Equity Jurisprudence, 5th Ed., Sec. 859, pp. 352-353.

It has been said it is the province of a court to enforce contracts and conveyances, not to make or alter them; but it is the duty of the court to enforce the contract that was really made, and when by mutual mistake a contract or other instrument is not expressed in such terms as have the force and effect that the parties intended, then it is the clear duty of the court to correct the mistake.This power of a court of equity to reform an instrument, which by reason of mistake fails to express the intention of the parties, has long been considered unquestionable.Leitensdorfer v. Delphy, 15 Mo. 160.And courts of equity have exerted the power to reform an instrument so as to make it speak the real agreement made between the parties in those cases where, because of the mistake or inadvertence of the scrivener, the writing fails to do so; and a court of equity will exercise this power not only as between the original parties, but as to those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors or purchasers from them with notice of the facts.If there are circumstances which in common reason and prudence ought to put a party to particular inquiry and by which inquiry he could have discovered the facts, the party is not considered a purchaser without notice.However, a mistake affording ground for the relief of reformation must be mutual and common to both parties to the instrument.It must appear that both have done what neither intended.Sicher v. Rambousek, 193 Mo. 113, 91 S.W. 69;Crouch v. Thompson, 254 Mo. 477, 162 S.W. 149;Kidd v. Brewer, 317 Mo. 1047, 297 S.W. 960;Luker v. Moffett, 327 Mo. 929, 38 S.W.2d 1037;Feeler v. Gholson, Mo.Sup., 71 S.W.2d 727;Steger v. Seabaugh, 346 Mo. 728, 142 S.W.2d 1001;Hoxsey Hotel Co. v. Farm & Home Savings & Loan Ass'n, 349 Mo. 880, 163 S.W.2d 766.

With respect to a claim of title by adverse possession--although a claimant, upon occupancy under a mistake as to the true boundary, did not intend to take land from the true owner and did not intend to occupy and possess land to which he had no record title, his possession may be hostile and adverse if he intended to occupy and did occupy as the owner.In the case of Agers v. Reynolds, Mo.Sup., 306 S.W.2d 506, 512, we quoted and reaffirmed the language of this court in State ex rel. Edie v. Shain, 348 Mo. 119, at page 123, 152 S.W.2d 174, at page 176, as follows, "If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse.It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title.It is the intent to possess, and not the intent to take irrespective of his right, which governs.Possession is a legal concept.It involves two things: A present or, in the case of constructive possession, a past ability to control the thing possessed plus an intent to exclude others from such control.Or, in the language sometimes used in the cases, to exercise dominion over the object possessed.One may have such an intent in the case of property actually belonging to another, because he intentionally wants to take it away from the owner.But he may also have this intent because he is mistaken as to the facts of legal ownership."See alsoFinck Realty Co. v. Lefler, Mo.Sup., 208 S.W.2d 213;Bell v. Barrett, Mo.Sup., 76 S.W.2d 394;Pioneer Cooperage Co. v. Dillard, 332 Mo. 798, 59 S.W.2d 642;Vogt v. Bergmann, Mo.Sup., 189 S.W. 1166.

Fred F. Wolf, one of the grantors in the deed to the Forses in 1924, witness for defendants, testified that the property, the whole of Lot 13 which he owned in 1924, had a frontage of 150 feet on Oak Street, and that he and his wife, Rose E. Wolf, intended to sell the Forses one-third of the frontage of Lot 13 on that street--'We had 150 feet front and intended to sell one-third of it.'When they, the Wolfs, built the stucco house at 446 Oak in 1925, the Wolfs specifically told the contractors to build the house 'six feet off (east) of the line.'The Wolfs built a (north-south) fence extending back to the railroad...