Opinion
No. 43313.
November 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY.
J. Grant Frye Cape Girardeau, for appellants.
Briney Welborn, Bloomfield, for respondents.
The appellants, George Fisher and Joe Allen, claiming to be the owners of a plot of ground on the outskirts of Bell City in Stoddard County, instituted this action in two counts to reform two deeds and to quiet the title to the land. The plaintiffs sought to reform the deeds because of alleged mistake, and they sought to quiet the title by reason of adverse possession in them and their predecessors in title since 1902. The trial court found against the plaintiffs on both counts of their petition. The court specifically found that the plaintiffs had not adduced sufficient evidence to sustain their claim of reformation and "that the plaintiffs have failed to adduce evidence to sustain the burden of proving adverse possession" and thus had failed to prove their claimed title to the land. The record title to the plot of ground was in the defendants, William C. and Eva B. McClard, and, in addition, they claimed title by reason of thirty-one years' adverse possession, accordingly these two defendants filed an answer and a crossbill claiming the fee-simple title. The other defendants are the heirs, some known and some unknown, of certain of plaintiffs' alleged predecessors in title and they have not appealed from the decree adjudging that they have no title or interest in the disputed plot of ground. The trial court found that the McClards, by reason of their record title and thirty-one years' adverse possession, were the fee-simple owners of the land, except that part north of an old abandoned road to which they disclaimed any interest, and accordingly adjudged title and all the issues in favor of the McClards. The plaintiffs, Fisher and Allen, appeal from the court's decree and contend: one, that they were entitled to a reformation of the deeds, two, that the evidence in support of their claim of adverse possession was sufficient and substantial and, three, that the evidence in support of the McClards' claims was insufficient and, therefore, the judgment upon all counts should be reversed and the plaintiffs decreed to be the owners of the land.
The parties, in their pleadings, and the trial court, in its decree have precisely measured and described the land involved in this litigation but the precise description is not necessary to a determination of this appeal. It is sufficient to note that there were two plots of ground which the parties have designated as L-F-H-I and B-E-D-C, each consisting of about 4.5 acres. An old abandoned road obliquely intersects both tracts cast and west and the land in dispute is south of that road in tract L-F-H-I. The land in dispute was an "old sand hill" of little, if any, value or use prior to 1948 when a sand pit was opened on the west side along the new north and south "farm to market" road. The sand pit is the background of this litigation. The plaintiffs, Fisher and Allen, and their predecessors have the record title to plot B-E-D-C but they say that it has been in the possession of the McClards and their predecessors for more than thirty-one years and so they do not claim title to that tract. In their deeds, which describe or include tract B-E-D-C, the key word is "east." By changing this word in their deeds to "west" the plaintiffs' deeds would describe adjacent tract L-F-H-I v. And it is in this respect that they seek to reform the two deeds upon which their title is dependent. The McClards have the record title to tract L-F-H-I by reason of the key word "east" in all their deeds. Neither Fisher nor Allen had any interest in or possession of either tract until 1948 when they obtained deeds to partial or fractional interests from descendants of their original predecessor in title and these deeds employed the call "east" and it is alleged and claimed that the use of the word "east" in their deeds and the deed to their original predecessor in title in 1902 was unintentional and a mistake. Therefore they sought to reform one of the recent deeds to them and a deed from John and Ella Hefner to their original predecessor in title, J. H. Hutchason, dated March 8, 1902, so that his deed and finally theirs would employ the call "west" and describe the land in question.
Considering first the appellants' right to reform the deed from the Hefners to J. H. Hutchason, dated March 8, 1902: There is no ambiguity in the deed and aside from the fact that this deed plainly employs the call "east" and does not purport to convey any part of plot L-F-H-I, it purports to convey 1.5 acres, the approximate size of both plots north of the old road, and not 4.5 acres, the size of the entire plot or 3 acres, the approximate size of plot L-F-H-I south of the old road. Prior to the execution of the deed there must have been a contract, agreement or understanding between the Hefners and J. H. Hutchason as to the consideration and land to be transferred but there is no evidence of that agreement or understanding, and from all that appears in this record the conveyance was in conformity with any agreement they may have had. Dougherty v. Dougherty, 204 Mo. 228, 237, 102 S.W. 1099. Furthermore there is no testimony indicating a mistake in any respect as to the terms of this deed. The following is the sole basis of the appellants' claim to reformation of this deed: "Although no oral explanation could be given by any witness for either plaintiffs or defendants as to why the deed from Hefner to Hutchason and other deeds to and from the Hutchason heirs described Tract B-E-D-C instead of Tract L-F-H-I, and why Hutchason and his successors never went into the possession of Tract B-E-D-C but went into possession of Tract L-F-H-I, and why defendants McClard and their predecessors had always had the possession of Tract B-E-D-C and that neither Hutchason nor his heirs had ever claimed it, * * *." It is said that these circumstances are sufficient to demonstrate that there was a mistake in the description in the deed from Hefner to Hutchason "and in the other deeds which persisted even down to the deeds appellants received from some of the other elder Hutchason heirs," and that such evidence was sufficient to require reformation. This statement which confuses the issues of reformation and adverse possession makes several unwarranted assumptions of fact and completely ignores the admitted fact that the record title to plot L-F-H-I was in the McClards and their predecessors in title. But assuming the validity of the statement and assuming for the purposes of this opinion that these statements constitute some evidence of a mistake the evidence is entirely lacking in the certainty and probative force required for the reformation of a deed by reason of mutual mistake. Feeler v. Gholson, Mo., 71 S.W.2d 727. The plaintiffs were not entitled to the reformation of the Hefner-Hutchason deed of 1902 and since their claim to the legal title in this action is dependent on that relief it is not necessary to consider their claimed right to a reformation of the 1948 or 1950 deeds from the Hutchason heirs.
J. H. Hutchason, the original source of the appellants' claimed title, died intestate in 1907 leaving four heirs. One of these four heirs and the children and grandchildren of two other heirs conveyed whatever interest they may have had in J. H. Hutchason's estate to Fisher and Allen in 1948. But there is no conveyance from the descendants of the fourth heir and so the appellants, Fisher and Allen, do not presently have the full title or interest to whatever land J. H. Hutchason possessed or owned in 1907. This fact is not briefed and argued by the parties and it is merely noted in passing but, since the appellants' claim of adverse possession is necessarily dependent upon "tacking", 1 Am.Jur., Sec. 151, p. 879; 2 C.J.S., Adverse Possession, § 128, page 685, it suggests a query as to their standing in this action, De Bernardi v. McElroy, 110 Mo. 650, 659, 19 S.W. 626; Crispen v. Hannavan, 50 Mo. 536, even though it be assumed that the outstanding one-fourth interest could be adjusted in this action, if found.
But aside from this fact the appellants, as the trial court found, "failed to adduce evidence to sustain the burden of proving adverse possession." Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544. J. H. Hutchason moved into a house on tract L-F-H-I north of the old road in 1902 and it is assumed that he exercised "the usual acts of ownership" over the land south of the old road, such as building structures on it, pasturing it, fencing it, cutting firewood and posts on it and making shingles. But J. H. Hutchason died in 1907 and his heirs were four children, some of whom lived in the old house north of the old road after his death. One son, Will, lived there with his mother until her death in 1917, and in 1917 he gave Green Lee a deed to his interest in the J. H. Hutchason estate. While he claims to have looked after the land for the other heirs he specifically stated that he had claimed no interest in the land since 1923. Green Lee's wife was Maud Hutchason. Green Lee died in 1922 and after his wife's death they left two children, Walter and Leslie. Leslie Lee conveyed his interest to the appellant Fisher but Walter's three children have made no conveyance. Although Leslie Lee had conveyed his interest to Fisher, he was a witness for the McClards and he stated that he had never been in possession of tract L-F-H-I or any part of it. Maud had been gone from Bell City for more than twenty years prior to her death. J. H. Hutchason's third child was a daughter, Grace, who had been dead for more than ten years and none of her children ever lived in the house north of the old road or on the premises. The fourth child was Charles Hutchason who deeded his interest to Fisher in 1948, but Charles had lived in Tennessee for many years and did not testify in this action and there is no evidence that he was ever in possession of the disputed plot. A man named Reeves now lived in a house north of the old road. He claims that he is now there under an arrangement with Fisher and Will Hutchason. The "arrangement" was that if he would build a house on the land north of the road he could live there rent free. This man claims to have been in possession of the land south of the old road and to have exercised dominion over it. But, he built the house in 1937 and lived there until World War II when he was in the army. He left his mother in the house but she left "four years ago" and about five years ago Reeves went to Idaho and has but recently returned to Bell City. There are circumstances indicating that some of the Hutchason heirs adversely occupied the plot south of the old road, but the appellants have no color of title V.A.M.S. § 516.040, and their evidence does not show that unbroken continuity of possession, Brown v. Chapman, Mo., 163 S.W.2d 920, or, for that matter, other elements, essential to the sustaining of the burden of proof of title by adverse possession. V.A.M.S. § 516.010; State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174; Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010; Pahler v. Schoenhals, Mo., 234 S.W.2d 581.
All the land mentioned in this litigation is part of a larger tract consisting of eighty-two acres. The common source of title was Charles Keller who conveyed to Congleton and in 1897 Congleton conveyed to Thomas B. Atwood. Atwood was Mrs. Eva McClard's grandfather. Atwood willed the property to his wife, Georgianna, for life with remainder to their three children, Henry C., Norman and Stella. Stella Kirby is Eva McClard's mother. Henry died when a small boy, Norman died, leaving a son, Milo, and Milo and his wife and Stella conveyed to William C. and Eva McClard in 1938. Incidentally, the deed from Congleton to Atwood in 1897, excepted 1 1/2 acres deeded to John Hefner, the appellants' source of title. So, without question, the McClards have color of title, V.A.M.S. § 516.040, and, while not conclusive, the evidence shows that they and those from whom they claim have paid taxes on the land since 1903. Reeves says that he paid three years' taxes to the township collector but had a receipt for but one year, 1943. The McClards, particularly Mrs. McClard, were acquainted with the Hutchasons and they were not aware of the fact that the Hutchasons had or made any claim to the land south of the road until the year 1950, after Mr. McClard had contracted with some people in Illinois to open the sand pit. Again, it is not necessary to detail and analyze the evidence, it is sufficient to say that it sustains the court's finding and decree in every respect. Anderson v. Collins, Mo., 222 S.W. 451; Himmelberger-Harrison Lumber Co. v. Jones, 220 Mo. 190, 119 S.W. 366.
In trying the appeal anew, Martin v. Lewis, Mo., 244 S.W.2d 87; Peterson v. Harpst, Mo., 247 S.W.2d 663, due regard has been given the trial court's opportunity to judge of the credibility of the witnesses (although any evidence objected to by the appellants has been rejected), and in so doing it may not be said that the finding and decree are so clearly erroneous as to require that they be set aside. V.A.M.S. § 510.310. Accordingly the judgment is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.