West v. Bretell

• Decision Date: 16 May 1893
• Citation: 22 S.W. 705,115 Mo. 653
• Parties: WEST v. BRETELL.
• Court: Missouri Supreme Court

22 S.W. 705

115 Mo. 653

WEST v. BRETELL.

Supreme Court of Missouri, Division No. 2.

May 16, 1893.

DESCRIPTION IN DEED — REJECTION OF FALSE CALL — EJECTMENT — ACTION TO MAINTAIN.

1. Plaintiff received a deed for property described as beginning on O. street, 30 feet west of a certain alley, and running west on that street 52½ feet. He subsequently conveyed to defendant's predecessor in title a portion of said land, describing it as beginning 50 feet east of S. street, and running east on O. street 25 feet; "being the western 25 feet of property acquired by" plaintiff as above. The distance between the alley and S. street was 135 feet. Held, that the call in the deed to defendant of 50 feet east of S. street as the point of beginning was evidently false, and must be rejected, the remainder of the description being sufficient to identify the property.

2. Plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of defendant.

Appeal from St. Louis circuit court; Daniel D. Fisher, Judge.

Ejectment by Washington West against Ambrose K. Bretell. From a judgment for defendant, plaintiff appeals. Affirmed.

Lubke & Muench and Fisse & Allen, for appellant. W. B. Thompson and E. P. Johnson, for respondent.

BURGESS, J.

The suit is ejectment to recover possession of a parcel of land, described in the petition as a strip or parcel of land lying in block No. 117 of the city of St. Louis, and more particularly as follows: "Beginning at a point in the north line of Olive street, seventy-five feet east of the east line of Sixth street; thence running northwardly, on a line parallel to the east line of Sixth street, one hundred and fourteen feet three inches, to a point; thence eastwardly, on a line parallel to the north line of Olive street, one foot and three inches, to a point; thence southwardly, in a straightline, one hundred and fourteen feet three inches, to a point in the north line of Olive street seventy-eight feet and seven-eighths east of the east line of Sixth street; thence westwardly, along the north line of Olive street, one foot eight and seven-eighths inches, to the point of beginning." The answer was a general denial and an equitable defense. The latter was abandoned at the trial, and no notice need be taken of it.

It may be stated here that plaintiff and defendant each claim, have buildings thereon, and occupy, by themselves or tenants, adjacent lots on the north side of Olive street, and between Fifth and Sixth streets, 114 feet in depth. Between these buildings is a narrow alley way 2 feet 7 3/8 inches wide on Olive street. Plaintiff, by his tenant, occupies the east lot, and claims to own the whole of this alley, and also the strip of land in dispute, which is occupied by the east wall of defendant's buildings, while defendant claims, not only the wall in dispute, but also a portion of the alley. The controversy is over the description of the land conveyed as contained in certain deeds under which defendant claims. It appears from the evidence that one-half of block 117, on the north side of Olive street, contains 135 feet, which includes 7 feet of an alley on the east. On the 4th day of February, 1836, John B. Sarpy and wife made a deed of conveyance to Albert G. Edwards, describing the land conveyed as follows: "Beginning at a point on the northern boundary line of Olive street thirty feet distant from the intersection of said boundary line and the western boundary line of lot 41, as laid down in the plat of Lucas and Choteau's addition to St. Louis, now on file and of record in the recorder's office, and running westwardly therefrom 52½ feet; thence northwardly, and parallel to Sixth street, 115 feet, more or less, to the southern boundary line of lot 43, as laid down in the plat aforesaid, which said lot was conveyed to Samuel Mount by John B. C. Lucas; thence eastwardly, along said southern boundary line, 52½ feet; thence southwardly, and parallel to Sixth street, 115 feet, to the point of beginning." September 1, 1838, Edwards conveyed to Thomas H. West by the same description. On the 13th day of September, 1867, West, by the sheriff, conveyed to L. Ruffner, Jr., by the same description, to which was added the following: "And is the same lot of ground conveyed to said West by Albert C. Edwards and Louisa C., his wife, by deed dated Sept. 1, 1838, and recorded in the recorder's office of said county, in Book F, No. 252; said lot of ground being bounded on the west by John B. Sarpy's estate, and on the south by Olive street." This deed was recorded in Book 347, p. 98. On the 24th day of January, 1873, Lewis Ruffner and wife conveyed to Washington West (plaintiff herein) by same description as the deed from Sarpy to Edwards, adding thereto the following: "Said property being acquired by the parties of the first part by deed recorded in Book 347, page 98." On the 30th of November, 1878, Washington West conveyed to Virginia I. Ruffner's trustee a portion of said land, describing the same as follows: "All that certain lot, piece, or parcel of ground situate in block No. 117 of the city of St. Louis aforesaid, and bounded and described as follows: Beginning at a point in the northern line of Olive street distant fifty feet from the northeast corner of Sixth and Olive streets; thence running east along Olive street twenty-five feet; thence north one hundred and fourteen feet; thence west, and parallel with Olive street, twenty-five feet; thence south, along property of Sarpy's estate, one hundred and fourteen feet, to place of beginning, — and being the western twenty-five feet of property acquired by party of the first part by deed from Lewis Ruffner, Jr., and wife, dated the 24th day of January, 1873, and duly recorded in Book 462, page 342, for a more full description of which reference is hereto made." On the 22d day of October, 1885, said trustee conveyed to defendant a lot described as follows: "A lot of ground in city block number one...