Weissenfels v. Cable

• Decision Date: 27 November 1907
• Parties: WEISSENFELS v. CABLE.
• Court: Missouri Supreme Court

106 S.W. 1028

208 Mo. 515

WEISSENFELS v. CABLE.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

On Rehearing, December 24, 1907.

1. DEEDS — CONSTRUCTION — PROPERTY CONVEYED.

An owner of a quarter section through which a stream ran in a general northerly direction conveyed "all that portion" thereof "lying on the west side of" the stream, excepting a railroad right of way, containing 32.71 acres, more or less. There was no evidence that the stream had shifted, but there was testimony that large trees were growing on either bank, and ancient banks. Held, that the grantee acquired no land east of the stream.

2. CANCELLATION OF INSTRUMENTS — FRAUD — PARTIES ENTITLED TO SUE — SUBSEQUENT GRANTEES.

The rule that a subsequent grantee may not maintain a suit to set aside for fraud a prior deed from his grantor to a third person does not apply where the grantee had a prior equitable right in the subject of the grant, in which case he may maintain such a suit, and thus perfect his prior equitable right.

3. DEEDS — FRAUD — EVIDENCE — SUFFICIENCY.

To set aside a deed for fraud, the fraud must be established by evidence going beyond a mere preponderance of the testimony, and removing all reasonable doubt.

4. SAME.

Evidence held insufficient to establish fraud warranting the setting aside of a deed on that ground.

5. EVIDENCE — PAROL EVIDENCE — DEEDS — INTENT OF GRANTOR.

In the absence of mutual mistake or fraud, and in the absence of any ambiguity in a deed, the grantor cannot cut down the operative words of a deed by proof of his intentions.

6. SAME — CONSIDERATION.

The rule that the consideration of a deed is open to explanation does not let in proof overturning the operative words of a grant in a deed free from ambiguity, or contradicting the deed itself or the descriptions therein.

7. DEEDS — NOMINAL CONSIDERATION — EFFECT.

A deed conveying land for a nominal consideration is not vitiated as a conveyance on that ground.

8. SAME — QUITCLAIM DEEDS — EFFECT.

A quitclaim deed is, for the purpose of transferring title, as effective as any other deed, excluding from consideration outstanding equities not the subject of record and recourse on covenants of warranty.

On Motion for Rehearing.

9. JUDGMENT — CONFORMITY TO PLEADINGS.

A judgment must be responsive to the pleadings and within their issues.

10. DEEDS — CANCELLATION — GROUNDS — MISTAKE.

A mistake, to furnish ground for setting aside an instrument, must be a mutual mistake of fact.

11. PLEADING — ALLOWANCE OF AMENDMENTS IN CONFORMITY WITH PROOF.

If the evidence warranted an amendment to a pleading so as to include therein a cause of action for setting aside a conveyance on the ground of mistake, and such an amendment was offered, the court on appeal from a judgment for the party offering the amendment will treat the case as if the amendment had been allowed.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Mathias Weissenfels against Lewis R. Cable. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

E. P. Garnett, for appellant. Scarritt, Scarritt & Jones, for respondent.

LAMM, J.

In September, 1904, plaintiff brought suit in the circuit court of Jackson county, having for its object to ascertain and determine the estate, title, and interest of plaintiff and defendant, respectively, in certain parcels or tracts of land, all included in the general description of S. E. ¼, N. E. ¼, section 28, township 48, range 33, in said county, and to define and adjudge such title, estate and interest. Judgment went for plaintiff, and defendant appeals.

The petition alleges that plaintiff is the owner and in possession of 32.71 acres, being all of the aforesaid 40-acre tract, except 6 acres (hereinafter called "tract A") in the southeast corner, described as follows: Beginning at the southeast corner of said quarter quarter section; thence north, along the east section line, 38 poles; thence west 25½ poles; thence south, 38 poles, to the south line of said quarter quarter section; and thence east 25½ poles to the beginning — and except 1.29 acres (hereinafter called "tract B") on the west side of the said quarter quarter section sold to a certain railroad company for a right of way. The answer follows: "Defendant, for answer to plaintiff's petition, denies each and every allegation in said petition contained, except as hereinafter stated. For further answer, the defendant says that he is the owner and is in possession of the following portion of the land described in plaintiff's petition; that is to say, the following described real estate in Jackson county, Mo., to wit: All that part of the S. E. ¼ of the N. E. ¼ of section 28, township 48, range 33, which lies east and south of the Big Blue river, and that the plaintiff is not now and never has been in possession of this portion of said tract of land and that plaintiff has no right, title, nor interest therein. Further answering, the defendant says that he does not claim any right, title, and interest in the remaining portion of the land described in plaintiff's petition, and has never asserted any claim thereto. Wherefore defendant, having fully answered, asks to be discharged with his costs." The reply denies the allegations of new matter in the answer.

By diagrams and descriptions in the testimony, it is possible to construct a crude map, serving a useful purpose, thus:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Let B, O, M, G, represent the S. E. N. E. of 28-48-33. Let X, Y, represent the railroad track. Then the land included in the adjacent parallel lines will be the right of way, tract B. Let B, F, P, D, represent the six acres excepted, to wit, tract A. Let C, L, K, J, H, A, represent the meandering channel of Big Blue river. Then the little tracts shown on the map, to wit, 1, 2, and 3 (lettered C, F, L, K, D, J, and H, A, G, respectively), together with all of tract A lying east of the Blue, represent the land claimed by defendant, while the whole S. E. N. E., less tracts A and B, represents the land claimed by the plaintiff. The bone of contention is over the little irregular tracts 1, 2, and 3, said to contain less than two acres. It is agreed on all hands that Morgan Boone, Sr., is the common source of title; that he died in 1851; and that Morgan Boone, Jr., is his sole heir; that defendant is in possession and has fenced all of said S. E. N. E. lying east of the Big Blue, has cleared some or all of it, and put some of it ready for the plow. There has, however, been no such length of possession as would ripen it into a title by the statute of limitations.

The plaintiff, to show title in himself, introduced record evidence, as follows: (1) A warranty deed from Morgan Boone, Jr., and wife, to R. B. Garnett, of date December 14, 1888, of record December 21, 1888, consideration $1,962.60, and conveying part of said 40-acre tract, to wit: "All that portion of the southeast quarter of the northeast quarter of section 28, township 48, range 33, lying on the west side of the Big Blue river [excepting tract B] which leaves the amount of land hereby conveyed, more or less, 32.71 acres." This deed is recorded in Book B 330, at page 458. (2) Also a warranty deed from said Garnett to one Bernard, dated September 21, 1888, recorded the same day, and conveying the same property by the same description. (3) Also a warranty deed from said Bernard to plaintiff, of date August 28, 1901, duly of record, consideration $2,500, and conveying the same property by the same description. (4) Also a quitclaim deed from said Bernard to plaintiff, of date January 30, 1904, of record February 5, 1904 (no consideration disclosed), and conveying "all of the southeast quarter of the northeast quarter of section 28, township 48, range 33, except six acres in the southeast corner thereof." This conveyance has in it the following narration: "This deed is meant to correct the description in a warranty deed to the same parties conveying the same property." (5) And also a conveyance called a "special warranty deed" from Morgan Boone, Jr., to plaintiff, of date April 15, 1904, acknowledged September 21st, and put of record September 22d of the same year, consideration $1, and conveying said quarter quarter section, except tracts A and B. This conveyance contains the following narration: "Containing 32.71 acres, more or less. This deed is made to correct a description of a deed from the grantor herein, 14, 1888, in Book B. 330, at page 458, of the recorder's office of said county, in which deed grantor intended to convey all said quarter quarter section, except six acres thereof sold off at the southeast corner, and the 1.29 acres in the railroad right of way." (6) The plaintiff (possibly a misprint for defendant) offered in evidence the files and decree in a suit of "Thomas Lea, Plaintiff, v. Morgan Boone et al., Defendants." The abstract shows this was a suit to compel the conveyance of real estate. Attached to the petition was the following receipt: "Received March 28, 1851, of Thomas Lea, $45.00 as a payment toward the land I sold to him on the east side of Big Blue, being a portion of township 48, range 33, and a part of the same land I purchased of John Maxwell as the agent and attorney of Lemuel Edwards, containing by estimation about six or seven acres which I sold to said Lea for $7.00 per acre. Witness my hand the date above. Morgan Boone." It seems that Morgan Boone, Sr., died before making a deed, and that the suit culminated in a decree (date not disclosed) investing Thomas Lea with title to tract A, except that the north boundary line is 26½ poles, instead of 25½ poles. It was next admitted that the title of said Lea vested in the grantors of defendant. The foregoing record proof was supplemented by evidence from the assessor's books of Jackson county, tending to show that from 1851 down to 1887 the quarter...