Opinion
May 7, 1940.
1. JURISDICTION: Appeals. It is the duty of the Supreme Court to determine if it has jurisdiction of a case on appeal whether the question is raised or not.
2. JURISDICTION: Title to Real Estate. In an action to determine the dividing line between two tracts of land the Supreme Court has not jurisdiction of the appeal unless the title to the land is involved.
To give the Supreme Court jurisdiction the title must be directly and not incidentally involved within the meaning of Section 12, Article 6 of the Missouri Constitution.
Where plaintiff brought suit to have the court determine the true division line between plaintiff's and defendant's tracts of land and award plaintiff such damages as may be just and equitable and for such other relief as the facts alleged may warrant and defendant's answer asked the court to dismiss plaintiff's petition, the pleadings did not ask that title be determined.
Where a father conveyed to his two daughters each a part of a tract of land described as 8 acres to one and 15 acres to the other, making 23 acres altogether, and the court found that the entire tract contained only 21.667 acres and adjudged a dividing line which gave the first 7.536 acres and 14.131 acres to the other, the only issue being to clear up the ambiguity in the description there being no dispute as to the actual amount of land, the title to real estate was not involved and the Supreme Court did not have jurisdiction of the appeal.
Appeal from Jefferson Circuit Court. — Hon. Robert I. Cope, Judge.
TRANSFERRED TO THE ST. LOUIS COURT OF APPEALS.
R.E. Kleinschmidt for appellant.
(1) The Supreme Court will try equity case de novo and reach its own conclusions on appeal. Aden v. Dalton, 107 S.W.2d 1070; Liflander v. Bobbitt, 111 S.W.2d 75; Peikert v. Repple, 114 S.W.2d 1002. (a) The rule that due deference will be given to the findings of the trial chancellor applies mainly where the evidence was chiefly oral and not, as here, where the issue is the construction of descriptions in deeds, and the material evidence consists largely of deeds, plats and written instruments. Shaw v. Butler, 78 S.W.2d 421; Smith v. Lore, 29 S.W.2d 96. (b) The Supreme Court, in an equity case, has a distinct advantage over the trial court in that it can view all the evidence in perspective from the printed record, especially in a case like this, where practically all of the material evidence consists of written instruments. Smith v. Lore, 29 S.W.2d 96. (2) The fundamental rule in the construction of deeds is to ascertain the intention of the grantor, and the entire deed should be considered in determining such intention. Triplett v. Triplett, 60 S.W.2d 15; Keller v. Keller, 123 S.W.2d 115; Monroe v. Lyons, 98 S.W.2d 544; Hubbard v. Whitehead, 221 Mo. 682. (a) Where a deed contains two inconsistent descriptions, that description which the whole instrument shows best expresses the intention of the parties must control. Whitaker v. Whitaker, 175 Mo. 11. (b) Where the deed, applied to the subject matter, shows a manifest omission (or misdescription) of a monument and there is sufficient data furnished by the deed to supply the omission (or correct the misdescription), the error will be corrected by construction. Deal v. Cooper, 94 Mo. 65; Central Mo. Oil Co. v. St. James, 111 S.W.2d 219. (c) Where more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake could be committed, and that be rejected in regard to which mistakes are most apt to be made. Bradshaw v. Bradbury, 64 Mo. 336; 3 Washburn on Real Property (4 Ed.), p. 405; 18 C.J., p. 288, sec. 258. (d) The parties will be presumed to have been influenced by facts of which they had knowledge rather than by things of which they were ignorant. 18 C.J., p. 280, sec. 248. (e) The rule is clearly established that whenever an inconsistent call is given in a survey or deed it may be rejected for inconsistency or repugnancy, where description enough still remains to ascertain and describe the land with certainty. Cooley v. Warren, 53 Mo. 166; Prior v. Scott, 87 Mo. 303; Shewalter v. Pirner, 55 Mo. 232; Federal Land Bank v. McColgan, 59 S.W.2d 1055; 18 C.J., p. 285, sec. 255.
John E. Corvey for respondents.
(1) In equity cases the appellate court is limited to the record proper or will affirm the judgment, unless all the evidence is embodied in the bill of exceptions. Appellant admits that all the evidence has not been brought up Rule 7, Mo. Sup. Ct.; Huggins v. Hill, 236 S.W. 1051; Ford v. Laughlin, 285 Mo. 533, 226 S.W. 911; State ex rel. Guinan v. Parrott, 183 Mo. 217, 81 S.W. 876. (2) If the identity of the property can be determined from description thereof, including several particulars, the estate will pass even though it does not agree in all particulars. Central Mo. Oil Co. v. St. James, 111 S.W.2d 215; McCune v. Hull, 24 Mo. 570; Hubbard v. Whitehead, 221 Mo. 672, 121 S.W. 69; 18 C.J. 283. (3) Where the words used in the description in a deed are uncertain or ambiguous and the parties have by their acts given a practical construction thereto, the construction so put upon the deed by them may be resorted to aid in ascertaining their intention. Blumenthal v. Blumenthal, 251 Mo. 693, 158 S.W. 648; Hubbard v. Whitehead, 221 Mo. 672, 121 S.W. 69; Moran Co. v. Car Co., 210 Mo. 736; 18 C.J. 279. (4) An impossible description may be rejected to carry out the intention of the parties and give effect to the instrument. Porter v. Robinson, 29 S.W.2d 133; Cooley v. Warren, 53 Mo. 166; Jennings v. Brizeadine, 44 Mo. 332; Hartt v. Rector, 13 Mo. 497, 53 Amer. D. 157; 18 C.J. 285, 286. (5) One who knows the true boundary line between himself and an adjoiner, who allows the latter, without protest, to make improvements up to what he supposes to be the true line, will be estopped to dispute such line. Evans v. Snyder, 64 Mo. 516; Collins v. Rogers, 63 Mo. 515; Majors v. Rice, 57 Mo. 384; Rutherford v. Tracy, 48 Mo. 325, 8 Am. Rep. 104; Acton v. Dooley, 6 Mo. App. 323; Craddock v. Short, 134 Mo. 499, 35 S.W. 1141. (6) Courts of equity will not aid to litigant who has negligently slept on his rights and suffered demand to become stale, where injustice would be done by granting relief asked. Snow v. Funck, 41 S.W.2d 5; Equity, Mo. Dig. Key No. 67. (7) One who seeks equity must do equity. Plaintiff makes no offer in her petition or elsewhere to pay for defendant's improvements and buildings. McNatt v. Maxwell Inv. Co., 330 Mo. 675, 50 S.W.2d 1080.
This is an action to determine the dividing line between two tracts of land in Jefferson County. Plaintiff owns one of the tracts and defendant, Adelia Ashauer Peer, the other. Other defendants are trustees and beneficiares in two deeds of trust. The learned trial court did not fix the dividing line as claimed by plaintiff and she appealed.
It is suggested in respondents' brief that we do not have jurisdiction of this appeal, but whether raised or not, it is our duty to determine such question. [Perkins v. Burks et al. (Mo.), 61 S.W.2d 756; Rust Sash Door Co. v. Gate City Bldg. Corp. et al., 342 Mo. 206, 114 S.W.2d 1023.]
January 29, 1932, Charles Ashauer, father of plaintiff and Adelia, conveyed to his daughters, by separate deeds, the two tracts here concerned. It was stated, following the description in plaintiff's deed, that her tract contained "8 acres, more or less", and in Adelia's deed, it was stated (same place) that her tract contained "15 acres, more or less." Plaintiff alleged and the court found that the two tracts contained only 21.667 acres. Also, plaintiff alleged and the court found that she should have 7.536 acres and Adelia 14.131 acres, and of this Adelia does not complain. Since there is no disagreement about the acreage each should have, it would seem that there should be no dispute as to the dividing line between the tracts. Such ordinarily would be true, but, under the description in the deeds, plaintiff contends that the dividing line should extend northwest and southeast, while Adelia contends, under the same descriptions, that the dividing line should extend northeast and southwest, and the court found that the dividing line extended as contended by Adelia. Hence the actual question is: Does the dividing line run as the court found or as plaintiff contends?
We do not have jurisdiction of this appeal unless title to real estate is involved. [Constitution, Sec. 12, Art. 6, and Sec. 5, Amendment 1884.] The only question in this case is the construction of the descriptions in the two deeds. The court found that the descriptions in the deeds were "vague, indefinite and ambiguous," and the judgment sets out a description for each deed, which, according to the finding, was intended by the grantor, and then it is adjudged that both deeds be reformed accordingly.
Phillips v. Cope et al. (Mo. App.), 104 S.W.2d 276, was transferred by the Springfield Court of Appeals to the Supreme Court on the theory that title was involved, and the cause was disposed of here (111 S.W.2d 81) without specifically ruling the question of jurisdiction. That case was a controversy between a brother and his two sisters. Their father owned the SW¼ of the SW¼ of Sec. 3, and 20 acres immediately south, the W½ of the NW¼ of the NW¼, Sec. 10. There was an east and west road on the section line (for the most part) between these tracts, which road had been established for many years. The road cut a triangular strip, about an acre or less, off the southwest corner of the forty acre tract in section 3, and this strip was joined up with the 20 acre tract in section 10. The home house of the father was on the section line immediately south of this strip and a number of the outbuildings were on the strip, and such had been the situation for many years. In 1916, the father conveyed to his daughters the 40 acre tract in section 3, describing it as the SW¼ of the SW¼, which, of course, included the strip. The father died in 1921, and the brother became the owner of the 20 acre tract upon which the house and outbuildings were supposed to be located. When it was ascertained that the triangular strip was actually a part of the 40 acre tract, the brother brought suit to reform (on the ground of mutual mistake) the deed that the father had made to his daughters, and the deed was reformed so as to eliminate the triangular strip.
In the Phillips case the deed, on its face, clearly conveyed to the daughters the triangular strip, and to reform it so as to eliminate this strip took title out of them and vested it in their brother, and therefore, title was involved. [Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W.2d 771.]
The situation here, however, is not the same as in the Phillips case. In the present case, certain described land is conveyed by each deed, and the only thing sought was to clear up an ambiguity in description. With the exception of making the two deeds conform to the fact that there were only 21.667 acres instead of 23 (about which there is no disagreement) the reformed description in each deed, according to the court's construction, is the identical land described in the deeds.
In the Nettleton Bank case, it is ruled (2 S.W.2d l.c. 774) that "to involve title within the meaning of the Constitution a judgment must adjudicate a title controversy. The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another." [See also Ballenger et al. v. Windes, 338 Mo. 1039, 93 S.W.2d 882, 883, and cases there cited.]
The petition, in the present case, asked the court "to ascertain and determine the true boundary and division line between said tracts of plaintiff and said defendant, Adela Ashauer Peer; to ascertain and determine a definite and correct description of each of said tracts of land; to compel said defendant to restore to plaintiff the possession of the property which belongs to plaintiff; to award to plaintiff such damages and rents for said premises as may be just and equitable; and for such other and further relief as the facts herein set forth may warrant and the court deem proper." Adelia's answer asked the court to "dismiss plaintiff's petition." Other defendants asked that their deed of trust liens be recognized. It seems clear that the pleadings did not ask that title be determined, and it is equally clear that the judgment did not take title from plaintiff and give it to Adelia, and this because there was never any title in plaintiff except to the land described in her deed, and that title, was not molested. Neither did the judgment give to Adelia any land or title not already described in her deed. The only thing that the judgment did was to settle the controversy between plaintiff and Adelia as to what land was conveyed by their respective deeds.
Bradley v. Milwaukee Mechanics' Ins. Co., 147 Mo. 634, 49 S.W. 867, was an action on an insurance policy. The defense was that the plaintiff was not the sole owner of the property at the time the policy was issued. Plaintiff obtained a judgment for $2,000 and the appeal was to the Kansas City Court of Appeals. That court transferred the cause on the theory that title to real estate was involved, but it was held that title was not involved and the cause was transferred back to the Court of Appeals.
In Peer v. Ashauer (Mo.), 92 S.W.2d 154, the parties were the same sisters as here. That case was to construe the will (set out in the petition) of their father and (in a second count) to partition the real estate devised. It was alleged that the will was ambiguous; that a controversy between plaintiff and defendant had arisen "respecting plaintiff's rights, nature of estate and interest," under the will. Plaintiff, giving her theory of construction, alleged that she and the defendant were "seized of an undivided one-half interest," that is, that they held the real estate devised as tenants in common. Defendant filed a demurrer to the petition, which demurrer was sustained and the appeal came to this court. We held that title was not involved and transferred the cause to the St. Louis Court of Appeals. It seems clear, from the will alone, that the real question on construction was whether the sisters held the real estate devised as joint tenants with survivorship or as tenants in common. It was held by the Court of Appeals (102 S.W.2d 764) that they held as tenants in common. Neither party got any title that the will did not devise. There was no title taken out of one and put in the other. For full history of the Peer case, supra, see above citation, and Peer v. Ashauer (Mo. App.), 102 S.W.2d 764, and State ex rel. Ashauer v. Hostetter et al., 344 Mo. 665, 127 S.W.2d 697.
In the present case the construction of the description in the deeds is not incidental to some other question, it is the only question. If plaintiff had brought suit to determine title, and had described the land in the petition as it would be described if the dividing line runs as she claims, and had asked that title be determined to that description, then title would be involved, but no such case as suggested is here. It is well settled that for title to be involved within the meaning of Sec. 12, Art. 6 of the Constitution, it must be directly involved and not merely involved collaterally (Ballenger v. Windes, supra, 338 Mo. 1039, 93 S.W.2d 882, and cases there cited), but in the present case, as we see it, title is not even involved collaterally. We are constrained to rule that we do not have jurisdiction of this appeal.
It has been held that "a court of equity has no jurisdiction to fix boundaries of legal estates, unless some equity is superinduced by the act of the parties," (Wilson et al. v. Hart, 98 Mo. 618, 12 S.W. 249), but if we do not have jurisdiction of the appeal, it is not for us to say whether the present case is such as to justify a court of equity to fix the boundary between the two tracts of land concerned here.
The cause should be transferred to the St. Louis Court of Appeals, and it is so ordered. Hyde and Dalton, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.