Warren v. Tom

• Decision Date: 02 June 1997
• Docket Number: No. 21265-1,21265-1
• Citation: 946 S.W.2d 754
• Parties: Oscar E. WARREN and J. Faye Warren, Plaintiffs-Respondents, v. Charles TOM and Wilma Tom, and Charles Dwayne Tom and Kathy Lynn Campbell, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 754

946 S.W.2d 754

Oscar E. WARREN and J. Faye Warren, Plaintiffs-Respondents, v. Charles TOM and Wilma Tom, and Charles Dwayne Tom and Kathy Lynn Campbell, Defendants-Appellants.

No. 21265-1.

Missouri Court of Appeals,

Southern District,

Division One.

June 2, 1997.

John Wiles, West Plains, for defendants-appellants.

W. Swain Perkins, Thayer, for plaintiffs-respondents.

BARNEY, Presiding Judge.

Appellants Charles Tom, Wilma Tom, Charles Dwayne Tom and Kathy Lynn Campbell (Defendants) appeal from a final judgment of the Circuit Court of Howell County, Missouri, entered against them and in favor of Respondents Oscar W. Warren and J. Faye Warren (Plaintiffs) arising from a boundary line dispute.

Plaintiffs purchased a tract of land in 1972, located along the western side of U.S. Highway 160 in Howell County, Missouri. In 1973, Plaintiff Oscar Warren was asked by Defendant Charles Tom if he would be interested in selling about one acre of the tract originally purchased by Plaintiffs. Plaintiff Oscar Warren told Defendant Charles Tom that he would be interested in selling the south portion of Plaintiffs' property that bordered U.S. Highway 160.

On February 26, 1973, the following described real property located in Howell County, Missouri, was conveyed by general warranty deed from the Plaintiffs to the Defendants:

A part of the NE 1/4 of the SE 1/4 of Section 31, Township 24, Range 8 lying west of Highway 160, more particularly described as follows: Beginning at the point where the west right of way line of said Highway 160 intersects the south line of said NE 1/4 of SE 1/4 of said Section 31, thence in a northerly direction along the west right of way line of Highway 160 a distance of 210 feet, thence west parallel to the south line of said NE 1/4 of SE 1/4 of Section 31 a distance of 300 feet, thence in a southerly direction parallel to said highway a distance of 210 feet, to the south line of said NE 1/4 of SE 1/4, thence east along the south line of said NE 1/4 of SE 1/4 300 feet to the point of beginning.

Subject to easements and restrictions of record. ¹

Thereafter, the parties lived in relative harmony until 1994 when this dispute arose over the location of the boundary line between the two parcels of land.

In 1994, Plaintiffs decided to build a new fence along the boundary line with the north line of Defendants' deeded property. They commissioned a registered land surveyor to determine the exact location of the boundary line on the ground. After determining the exact boundary line, the Defendants protested the land surveyor's findings. The Plaintiffs then brought this action to determine the boundary line and a court-tried case ensued.

The crux of the dispute appears to center on the true location of the south boundary line of what was Plaintiffs' property, just prior to the conveyance of the 210 X 300 parcel of land to Defendants.

Both parties admit that there was an old fence line in the south portion of Plaintiffs' property, from whence a measurement was taken so as to determine the projected north boundary line of the parcel of land to be conveyed to Defendants.

As more fully described below, Plaintiffs contend that the old fence line did not lie on the true south boundary line of their tract of land, from which they were conveying to Defendants. Rather, they maintain that the old fence line was some 30 feet north of their true boundary line. Further, at the time that Plaintiff Oscar Warren and Defendant Charles Tom were discussing the boundaries of the projected conveyance, Plaintiffs assert that Defendant Charles Tom was informed that Plaintiffs' true boundary line lay south of the old fence line and they both agreed to "step-off" a measurement of 210 feet going north from the old fence line, just to get a "general idea" of where the projected north boundary line was to be located.

Defendants, however, maintain that the old fence line was in fact the true boundary line of Plaintiffs' real property, prior to the conveyance, and that Plaintiff Oscar Warren and Defendant Charles Tom agreed to measure the 210 feet from that point by a measuring tape, and placed corner posts on three of the four points of the projected conveyance.

The trial court determined that the true boundary line between Plaintiffs' north parcel of land and Defendants' adjoining south parcel of land was the boundary line, in consonance with the legal description set forth in the general warranty deed executed by Plaintiffs on February 26, 1973. In that deed, Plaintiffs conveyed to Defendants a parcel of land which measured approximately 210 feet north and south and 300 feet east and west. The trial court's judgment, therefore, precluded the Defendants' claim of title to a disputed 30 by 300 foot strip of land lying north of Defendants' deeded north boundary line.

Defendants raise three points of trial court error: (1) in determining the location of the boundary line between the Plaintiffs' and Defendants' parcels of land; (2) in finding that no ambiguity existed in the warranty deed from Plaintiffs to Defendants, thereby ignoring Defendants' testimony regarding the true intentions of the parties at the time of the conveyance; and (3) in finding, contrary to the weight of the evidence, that Defendants did not acquire title to the disputed property by adverse possession.

I.

An appellate court is to sustain a judgment entered in a court-tried case unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Landers v. Huffman, 914 S.W.2d 394, 396 (Mo.App.1996) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court on questions of credibility of witnesses and the choice between conflicting evidence. Landers, 914 S.W.2d at 396 (citing Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App.1988)); see also Rule 73.01(c)(2). ² A court should exercise the power to set aside a decree or judgment on the ground that it is against the manifest weight of the evidence with caution. Murphy, 536 S.W.2d at 32.

II.

We review Defendants' Points One and Two together because they are inseparably related. Defendants argue court error in determining the location of the property boundary line and in determining that no ambiguity existed in the February 26, 1973, deed which would have required the trial court to look outside the deed and examine the intention of the parties. See Homan v. Hutchison, 817 S.W.2d 944, 949 (Mo.App.1991).

An accurate description of the disputed real property which Defendants claimed title to was not available for this Court's review. Indeed, we were without the benefit of any of the exhibits used during the trial.

When exhibits are omitted from the transcript and are not filed with the appellate court, the intendment and content of the exhibits will be taken as favorable to the trial court's ruling and as unfavorable to the appellant. Gage v. Morse, 933 S.W.2d 410, 424 (Mo.App.1996).

As we understand it, however, the property Defendants claimed title to was a strip of land approximately 30 feet wide that runs about 300 feet west from U.S. Highway 160, and that lies north of the north boundary line of Defendants' property, as described in the February 26, 1973, deed.

Consistent with the deed of February 26, 1973, the judgment of the trial court found a common point of beginning for the boundary line separating the two parcels of land. The court described it as having commenced at a point on the west right-of-way line of Highway 160, a distance of 210 feet from where the west right-of-way line intersected the south boundary line of the Northeast Quarter of the Southeast Quarter of Section 31 "thence West parallel with the South boundary line of said Northeast Quarter Southeast Quarter a distance of 300 feet...."

The trial court's judgment necessarily precluded Defendants' claim of title to the strip of land north of the designated boundary line between the parties' property.

Defendants argue that the deed was ambiguous and that the trial court should have ascertained the intention of the parties as of the time of the original conveyance. "In the absence of ambiguity, the intention of the grantors must be determined by what the deed actually says, not what they might have said had they undertaken to explain their intentions." Elmore v. Elmore, 557 S.W.2d 910, 911 (Mo.App.1977); see also Jamieson v. Jamieson, 912 S.W.2d 602, 605 (Mo.App.1995); O'Neal v. O'Neal, 703 S.W.2d 535, 538 (Mo.App.1985). However, the trial court did in fact receive evidence of what each party intended at the time of the conveyance. It did so, apparently, based on the pleadings of the parties which revealed a latent ambiguity in the description of the land in the February 26, 1973, deed.

A latent ambiguity in the description of land in a deed or mortgage is 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, when an attempt is made to apply the language to the ground.

Becker v. Workman, 530 S.W.2d 3, 6 (Mo.App.1975). "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." Id.

There was conflicting testimony presented at trial with regard to what the original agreement was relating to the boundary line separating the two parcels of land.

As best as we can discern from the record, without having benefit of the exhibits, Plaintiff Oscar Warren testified that there was no fence on the north line of the parcel of land that was deeded to Defendants by the Plaintiffs.

Plaintiff Oscar Warren testified that "there was a fence along the south [part of Plaintiffs' property]." He stated that his predecessor in title told him that the "fence was not on the [south] line [of Plain...