Whitehead v. Ragan

• Decision Date: 12 October 1891
• Citation: 17 S.W. 307,106 Mo. 231
• Parties: WHITEHEAD v. RAGAN.
• Court: Missouri Supreme Court

17 S.W. 307

106 Mo. 231

WHITEHEAD v. RAGAN.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

CONSTRUCTION OF DEED — ARTIFICIAL BOUNDARIES.

1. When an authenticated plat of land is referred to in a deed conveying a portion of the tract it becomes as much a portion of the deed as if fully incorporated in it.

2. Where the lines between lots were located upon the land by artificial monuments when the land was surveyed and subdivided, and can be ascertained and determined, they will control courses and distances in the plat and deeds referring thereto, and the question of such location, where the evidence is conflicting, is for the jury.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action of ejectment by Charles W. Whitehead against Mary Ann Ragan. Defendant appealed from a judgment on a verdict directed for plaintiff. Reversed.

M. Campbell, for appellant. Milton Moore and E. G. Vaughan, for respondent.

MACFARLANE, J.

The contest in this case is over the location of the division line between lots 1 and 4 of Kritzer & Ragan's subdivision of a part of the E. ½ of the N. W. ¼ of section 21, township 49, range 33. About the year 1870, defendant, Mary Ragan, and one Virginia Kritzer, being the owners of the whole tract, had it subdivided into seven lots, numbered from 1 to 7. A plat of the subdivision was made and recorded. The dimensions of each lot, and the area, were marked on the plat. Lot 1 is designated on the plat as a parallelogram, 11.13 chains north and south, and 5.34 chains east and west, containing 5.94 acres. This lot lay in the north-west corner of the tract. Lot 4 lay south of and adjoining lot 1, but extending 6.66 chains further east. The north and south line on the west side of lot 4 as marked on the plat was 8.17 chains, and the lot contained 12.92 acres. On the 1st day of September, 1870, defendant conveyed, by quitclaim deed, to Virginia Kritzer, all her interest in lots 1, 5, and 6, reciting in the deed that lot 1 contained 5.94 acres, "as will appear by reference to the recorded plat of said subdivision." March 17, 1885, Virginia Kritzer and husband conveyed to Larkin and Blackmar, by warranty deed, lot 1, under the following description: "Lot No. 1 in Kritzer and Ragan's subdivision of the E. ½, N. W. ¼, sec. 21, T. 49, R. 33, containing 5.94 acres, more or less, including 30 feet road-way." April 22, 1886, Larkin and Blackmar conveyed, by warranty deed, to plaintiff, Whitehead, "lot one in Kritzer and Ragan's subdivision in E. ½, N. W. ¼, sec. 21, T. 49, R. 35, in Jackson county, Mo." When he purchased he was not shown the corners of the lot, but was referred to the plat for quantity, courses, and distances. At the time of plaintiff's purchase lots 1 and 4 were included in one inclosure. Soon thereafter defendant built an east and west fence, as she claimed, on the north line of lot 4, for the purpose of a separate inclosure of that lot. Plaintiff claims that this fence is about 35 feet too far north, and included that quantity of lot 1, to recover which this suit is prosecuted. An accurate measurement of the north and south line of plaintiff's lot 1, commencing at defendant's fence, shows an unquestioned shortage of 34.58 feet, as compared with the whole length of the lot as shown on the plat. All the foregoing facts were shown by plaintiff, and are not disputed. Defendant offered evidence which tended to prove that when the subdivision was made stones were planted to mark the four corners of lot 1; that after she conveyed her interest in lot 1 to Kritzer, in 1870, the line between the stones planted for the southwest and south-east corners of...