September 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY, TOM R. MOORE, J.
John M. Bragg, Ava, for appellants.
N. J. Craig, Mansfield, for respondents.
Action in equity to reform a deed, quiet and determine the title to described land in Douglas county and enjoin the cutting of timber pending a final adjudication of title. The trial court found the issues for defendants and entered judgment accordingly. Plaintiffs have appealed.
On or about September 6, 1939, the plaintiffs delivered to John Hart their warranty deed, dated August 28, 1939, conveying to him real estate in Douglas County, Missouri, described as "all that part of the northeast quarter of the northeast quarter, Section 2, Township 27, Range 15, lying on the north and east side of the Mansfield and Olathe road, containing in the aggregate 10 acres, more or less." On September 10, 1941, John Hart, a single person, conveyed to L. D. Pugh and Grace Pugh, husband and wife. On October 15, 1942, the Pughs conveyed to James O. Clouse and Bertha Clouse, husband and wife. On May 11, 1945, the Clouses conveyed to defendants F.A. Dennis and Lola G. Dennis. Each of the several deeds purport to convey the same real estate by the same description.
This suit was filed January 5, 1950. Plaintiffs sought to set aside their deed to John Hart, and all of the succeeding deeds in the same chain of title, on the ground of mutual mistake of fact on the part of the parties to each of the several deeds and mistake on the part of the scrivener of each deed in that it was the intention of the several grantors to sell and of the several grantees to buy only the following described real estate, to wit, "A part of the northeast quarter of the northeast quarter of Section 2, Township 27, Range 15, Douglas County, Missouri, being described as a strip of land 10 acres in width across the east side of that part of said forty acres of land lying north and east of the Mansfield and Olathe Road." Only the grantees in the last conveyance in the chain of title mentioned above were made defendants.
Defendants denied the several allegations as to mutual mistake of the parties to the several deeds and mistake of the scrivener of each deed and alleged that they (defendants) were the owners of all that part of the mentioned subdivision of Section 2 "lying on the north and east side of the Mansfield and Olathe Road"; that plaintiffs owned no part thereof; and that defendants purchased without notice "that plaintiffs claimed that there was a mistake in the description of said land." Defendants further alleged "that they and those under whom they claimed had been in the open, notorious, adverse and peaceable possession of said land for more than ten years before this suit was filed"; that plaintiffs had not been in possession during said period; and that plaintiffs' action was barred by the ten year statute of limitations, now Section 516.010 R.S.Mo. 1949.
Plaintiffs' evidence tended to show that the said northeast quarter of the northeast quarter was a fractional subdivision of Section 2 containing only 31.59 acres; that the Mansfield and Olathe road crossed the subdivision, "starting just south of the northwest corner and going in a southeasterly direction"; and that 19.22 acres of the fractional subdivision lay east and north of the said road.
The testimony of plaintiff Blanche E. Van Eaton tended to show that she lived in Sidney, Iowa, and was the owner of all the northeast quarter of the northeast quarter of said section; and that W. W. Van Eaton was her husband. She was visiting in Douglas County in the summer of 1939. Mr. Hart asked about buying a strip of land for a road and he wanted to show her what he wanted to buy. They went down on the land just off the road east of where a pond was subsequently made. He pointed to the north and said "I would like to have that strip because my road is going out over here, and I want to be sure that I have a road. * * * I don't believe it would take four acres, but I will pay you $10.00 an acre for ten acres." She said what he wanted "would be the southeast side" of her forty. She did not intend to sell all of the land north and east of the road, but "intended to sell him enough for a road and he said it would be eight or ten acres." He owned the forty to the east and she knew where the east line of her property was located. Her land was in big timber at the time and had a two point wire fence around it. She had the deed prepared at the bank at Mansfield. Mr. Hart may have been present. The deed "wasn't prepared the way she had it in her mind." She saw the deed after it was prepared and she thought Mr. Hart saw it also. She took the deed to her husband for execution and mailed it back for delivery. Mr. Hart paid her $100 for the ten acres. During all of the time since her deed was delivered to Mr. Hart, she had always claimed the remaining land north and east of the road. She "didn't know it was sold," and she knew nothing of the other transactions with reference to it, until in August 1947, when her son started to cut some wood for fuel and Mr. Dennis claimed the land. Since the date of her deed to Mr. Hart, he and his grantees had paid the taxes on only 10 acres and the Van Eatons had paid the taxes on the remainder of the fractional subdivision of Section 2.
The land north of the road was described by plaintiffs' witnesses as being timber and pasture land. Only 3 or 4 acres were level or could be cultivated. Two gulches, ditches or small canyons extended down through it. In 1939 there was a lot of good timber on it, white oak and red oak. It was good pasture land and was fenced in 1930. After Mr. Hart purchased it, he built a new fence, enclosing the land with his farm, and he dug a pond near the road. The reasonable market value of the land in 1939 was $10 to $15 per acre.
Defendants called Mr. Hart as their witness. His testimony tended to show that he asked Mrs. Van Eaton if she would sell him a little strip there to make him a better road — about thirty or forty yards. She said, "I wouldn't want to sell it to you unless you bought the whole thing." He said, "I will buy all of it, the whole thing there, if you will let me come right straight across there, and I'll give you $100.00 for it, and that is every cent I will give." She said, "No, we want this here to keep the stock away from us. * * * I want this fenced, and if you will build a fence from this section line right on back here * * * yonder there to that corner, you can have that for whatever you want to give me for it. You offered me $100.00." And he said, "That is just what I will do and all I will do." That was for all the land north and east of the road. There was no definite number of acres. "She said it was no account to them." She wanted a fence there before he paid her for it and he built the fence where it stood at the time of the trial. He dug a pond and built the fence down along the north side of the road, enclosed all the land north of the road and Mrs. Van Eaton "never said a word" to him about it. He thought maybe there might be more than ten acres. He said that he didn't know he was getting nineteen acres and still "don't know it today." Mrs. Van Eaton came to his house ten or fifteen times trying to sell him the land. He did not point out where he wanted a road. There was no fence there when he bought the land, but Mrs. Van Eaton wanted the fence built north of the road angling across the forty, where he built it.
Defendant F.A. Dennis knew nothing of plaintiffs' claim when he bought the land. He was familiar with the land when Mr. Hart owned it. He had seen Mr. Hart working on the fence along the northeast side of the Mansfield and Olathe road and had seen cattle pasturing on the land. He first learned of plaintiffs' claim when he found the fence cut and Mrs. Van Eaton's son cutting wood on the property in 1949. When he first looked at the land after he purchased it, he knew there was more than ten acres, but after he found the corner of the quarter section across the road, west of the road and one hundred yards from where he first thought it was located, he saw there was not as much land as he first thought, but he knew there was "a little more than ten acres." Defendants also called James O. Clouse as their witness. He did not have any knowledge of Mrs. Van Eaton's claim to any part of the real estate north and east of the road when he purchased it in 1942. He saw that the deed called for ten acres, more or less. The fence that followed along the road was the line. He kept up the fence while he owned the land. His cattle "ran up to the fence." No objection was made to his possession while he owned it. He lived on the property of which this tract was a part.
Defendants' evidence further tended to show that in 1939 there was very little good timber on any part of the tract in question. The land was very rough and rocky, with steep slopes. In 1939 the tract north and east of the road was worth $2.50 to $5 per acre.
In rebuttal plaintiffs' evidence tended to show that Mrs. Van Eaton never went to Mr. Hart's house or solicited him to purchase the property, but that, during the winter prior to the trial, she asked him how many acres he bought from her and he said "he bought ten acres more or less, and it was that strip of land right down there below the house, on the other side of the house to come out for a road." He said he would come down and show her just what he bought, but, when she saw him the next time, he had changed completely and said he bought all of that across the road. Her husband confirmed her testimony as to her conversations with Mr. Hart.
The trial court found issues for the defendants and adjudged that defendants were the owners of "all that part of the northeast quarter of the northeast quarter of Section 2, Township 27, Range 15, Douglas County, Missouri, lying east and north of the Mansfield and Olathe Road, containing in the aggregate 10 acres, more or less, * * * and that the plaintiffs have no legal right to same."
Appellants insist that the court should have reformed the deeds as requested and quieted the title to all of the described real estate north and east of the road, except the 10 acres, in appellants. Appellants' theory is that, although the several deeds indicate the transfer of 10 acres, more or less, an observation of the tract north and east of the road would disclose nearly twice that amount of land, so that respondents and their predecessors in title had sufficient notice to stop them from claiming any excess over 10 acres as innocent purchasers. Appellants insist that "One who has notice of a fact which ought to have put him on inquiry, and which he might have discovered by using due diligence, cannot claim as a purchaser without notice." Sicher v. Rambousek, 193 Mo. 113, 129, 91 S.W. 68, 72. Appellants say that "a variance of 9.32 acres in a small tract of 19.22 acres could not have been contemplated by the parties to a deed"; that "more or less" is a term used to "cover a small excess or deficiency proportioned to the amount named", Kite v. Pittman, Mo.App., 278 S.W. 830, 831, and the words could not aid respondents; that all grantees purchased with notice of the acreage mentioned and the size of the tract; that the grantees were not innocent purchasers; and that the real intent to convey only ten acres "can be gathered from the whole description by reasonable construction."
We think the first issue for determination is whether or not a mutual mistake of fact was made so that the description of real estate was in fact different from that which the grantors intended to sell and the grantee intended to buy. No questions have been raised as to necessary parties, although it is apparent that all of the parties to the several deeds have not been made parties to the action. The grantors in the first deed in the chain are plaintiffs and the grantees in the last deed are defendants. John Hart, the grantee in the deed from appellants, was called as a witness by respondents. His testimony was directly in conflict with that of Mrs. Van Eaton since, according to his testimony, he intended to purchase and did purchase all of the real estate in the particular subdivision lying north and east of the road. The trial court saw the parties, heard the conflicting testimony, found the issues for defendants and, therefore, accepted Hart's version as to the real estate intended to be purchased from Mrs. Van Eaton. We must and should defer to that finding. On Mr. Hart's testimony the only error in the deed was the reference to 10 acres, more or less, since the acreage of the tract to be conveyed was not mentioned or considered at the time the sale was made. Mutual mistake by both parties was not sufficiently shown.
"Before a court of equity will entertain a bill to reform a contract on the ground of mistake, the mistake must be mutual; that is, the contract must be written in terms which violate the understanding of both parties. * * * The mistake must occur in reducing to writing the contract upon which the parties had agreed; the prior agreement upon the terms of the contract is presupposed. * * * Proof of the prior agreement, which was erroneously written by mistake, must be clear and convincing." Wilhite v. Wilhite, 284 Mo. 387, 224 S.W. 448, 449. "Courts of equity do not grant the remedy of reformation upon a probability, nor even upon a mere preponderance of evidence but only upon a certainty of error." Brown v. Gwin, 197 Mo. 499, 506, 95 S.W. 208, 211; Feeler v. Gholson, Mo.Sup., 71 S.W.2d 727, 728; Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419, 423. The burden of proof rested on appellants to show a mutual mistake on the part of the parties to the several deeds. Feeler v. Gholson, supra. That burden was not sustained.
While the testimony of both Mr. Hart and Mr. Clouse tends to show that they thought "there might be more than ten acres" in that part of the northeast quarter of the northeast quarter of Section 2 lying north and east of the Mansfield and Olathe road, there was no admission by respondents that the acreage amounted to 19.22 acres, or materially exceeded 10 acres and, in view of the court's decree, it is not clear that the trial court accepted the surveyor's testimony as to the exact acreage lying north and east of the road. There is no evidence that any grantee in fact had knowledge of appellants' claim prior to accepting a conveyance of the property and entering into possession thereof. The description contained in the several deeds was insufficient to put any grantee on notice that there had been a mutual mistake of fact or mistake of the scrivener when the deeds were drawn, as alleged, and such ultimate fact of mutual mistake was not established by the evidence.
Appellants further insist that whenever possible the real intent is to be gathered from the entire description, the general as well as the particular description; and that courts can declare the meaning of the description in the deed when the real intent can be gathered from the whole description by reasonable construction. Fancher v. Prock, 337 Mo. 1119, 88 S.W.2d 179, 181; Prior v. Scott, 87 Mo. 303, 309; Burnett v. McCluey, 78 Mo. 676, 690. In effect it is contended that "it can be gathered from the whole deed that it was clearly the intent of the grantor to give only a definite quantity." Gray, Adm'r v. Temple, 35 Mo. 494, 498. The rule relied upon cannot aid appellants under the facts of this case. No such intent is clearly apparent on the face of the several deeds.
The description contained the words: "all that part of the northeast quarter of the northeast quarter Section 2, Township 27, Range 15, lying north and east of the Mansfield and Olathe road." This part of the description referring to governmental subdivisions and to the road, a natural monument the existence of which was admitted, must control over the further recital as to acreage. Friesz v. Butcher, Mo.Sup., 191 S.W. 66, 68; Baker v. Clay, 101 Mo. 553, 558, 14 S.W. 734; Pruitt v. St. Johns Levee Drainage Dist., 341 Mo. 120, 106 S.W.2d 467, 469; Porter v. Robinson, Mo.Sup., 29 S.W.2d 133, 135. The quantity of acreage mentioned must be rejected as inconsistent with whatever happens to be the actual area of the premises particularly described by the reference to the governmental subdivisions and the road mentioned. Ware v. Johnson, 66 Mo. 662, 668.
In view of the conclusions we have reached, it will not be necessary to rule a further point urged by respondents, to wit, that the appellants, and no one under whom they claim, have been seized or possessed of the described real estate within ten years immediately prior to the institution of this suit. In so contending the respondents say the evidence shows that Mr. Hart took possession of all the real estate north and east of the road immediately upon the delivery of the deed to him; that he built a fence enclosing the property for pasture; that appellants were never again in possession; and that appellants' action was not instituted until January 5, 1950, after appellants had been out of possession for more than ten years. We do not rule the issue.
For the sake of clearness, we think the description in the judgment should be modified by striking out the words "containing in the aggregate 10 acres, more or less." As modified, the judgment is affirmed.