Kleine v. Kleine.

*320 GRAVES, J. Action to quiet title. The petition is in conventional form under the statute. By answer the defendant says that she has a lease for a period of twenty years on a portion of the tract of land described in the petition of plaintiffs; that plaintiff John Kleine marked off the lot 100' by 70 feet, and that she built a five-room cottage thereon, and fenced it, and took possession of it; that the said John Kleine assisted her in the building of the house and fences; that thereafter she paid rent for two years. Reply was a general denial. Trial before the court resulted in a judgment for plaintiffs as to the title being in them, but the further judgment that defendant had a valid lease for 20 years upon the tract 100 by 70' feet. Prom such judgment plaintiffs have appealed. John Kleine and the defendant are brother and sister. In 19131 John Kleine told his sister that she could have a lease upon a small tract (100 by 70) of his land on Coal Bank Road in the City of St. Louis. He pointed out to her the boundaries. At her own cost and expénse she built a five-room cottage thereon, and fenced the land, and took possession of it. In .1915, after much urging, she got John Kleine and wife to execute the following lease: “This lease made and entered into by and between John and Rose Kleine, hereafter referred to as lessor, and Mary L. Kleine, hereafter referred to as lessee. “Said lessor for and in consideration of a rent of -five dollars t.o be paid yearly by said lessee, does hereby 'lease unto said lessee the following described premises situated in the City of St.' Louis, State of Missouri: One hundred feet running westward on Coal Bank Road, beginning at private road fronting house, and TO feet running northward on private road beginning at Coal Bank Road. “This lease begins June 15, 1913, expires June 15, 1933. Lessee has the right to remove at any time improvements made by lessee. “During the time of lease said lessee has the privilege of a moderate use of water. “Said, lessee promises to sell improvements made on premises for a reasonable price at any time when lessor sells the land. “Mary L. Kleine, Jno. J. Kleine, Rosa Kleine.” *321 For two years lie accepted the money for the rent, but thereafter he declined rent. Conceiving the lease invalid he and his wife brought this action. Kleine’s testimony in the case tends to leave a bad taste in the judicial mouth. Among other things he requested that the lease be signed with a lead pencil, and says that he “figured” that it was no good when he signed it, “because there was no starting point.” All this was after the sister had put her money into the improvements. Further details will be left to the opinion. Description I. It is clear that the idea of John Kleine, as to there being no starting point mentioned in the lease, is without foundation. The lease says: “one hundred feet run-n^n§’ westward on Coal Bank Road, beginning at private road fronting house, and 70' feet running northward on private road beginning. at Coal Bank Road.” From this it. is clear that the starting point -is the intersection of Coal Bank Road and the private road. From this intersection, or starting point, the tract was to be 1001 feet on Coal Bank Road, and 70. feet on the private road, from the intersection of the two. In other words, the description in the lease gives a starting point, and two sides of the lot. Having a. fixed corner and the two sides given, a parallelogram will be presumed. In other words we have the width and depth of the tract given, and only have to extend the lines to get a parallelogram. In Smith v. Nelson, 110 Mo. 552, we have a description calling’ for one acre in the corner of a government .surveyed tract. There we had only the starting point. We held that an acre in a square form would be presumed from such a description. So in this case having the starting; point and two sides given we will presume the parties had in mind a parallelogram. See, also, 2i Devlin on Deeds, p. 1922. We have no doubt about the fact that this lease calls for parallelogram 100 by 70 feet, with the long* side of the parallelogram on Coal Bank Road. The idea of there being no common starting *322 point for the respective sides of the parallelogram is not borne out by the lease itself. Whether the description fails for other reasons, we will discuss later. II. The real issue in the case is not the Adews expressed by John .Kleine, to the effect that he signed the lease (in lead pencil, at his own suggestion) because he thought it invalid, owing to the absence of a starting point. He seems not only to have had that idea, but the other erroneous view, entertained by many laymen, that a deed cannot be signed -with a lead pencil, but must be signed with pen and ink. After his sister had expended her money on a five-room cottage and fences upon ground which he pointed out to her, it required twTo years to giet him to sign a lease. When he did sign it he thought he had it in shape to beat the sister. And all this after he had accepted the rent for the first two years. What Wagner, J., said in Tetherow v. Anderson, 63 Mo. l. c. 98, is peculiarly applicable to John Kleine. That learned jurist thus spoke: “The only ground urged for a reversal is, that the description was so uncertain 'and indefinite that nothing passed by the plaintiff’s deed. This claim surety cornos with a bad grace from the plaintiff, who acknowledges that he sold and conveyed the land by that description. ’ ’ The appellant Kleine not only went upon the ground and marked out the lot upon which the sister was going to build her little homie, but he assisted her agents in the building of1 the cottage and fences, accepted the agreed rent for two years, and finally executed the lease in writing, after telling his sister to make it as short as possible. There is no question that the house is there facing the private road mentioned. There is no question that there is’ and was a private road. There is no question that Coal Bank Road is and was a public highway in the City of St. Louis, and State of Missouri. There is no question that the plaintiffs owned a tract of land (some eight acres more or less) on this public road, and that the lease was intended to cover a part of this tract. A surveyor testified that he could and did take the deed, and from its terms located the lot leased, after finding *323 out the property on Coal Bank Road owned by the plaintiffs. In other words once given their property on Coal Bank Road, the tract claimed by defendant could be located by the description given in the lease. The real issue is, whether the description taken as a whole, aided by such extrinsic evidence as may be used in construing the ambiguous terms of the contract, is sufficient to locate the hand described in this lease? Thus in Hubbard v. Whitehead, 221 Mo. l. c. 683, Gantt, P. J., said: “Extrinsic evidence is always admissible to explain the calls of a deed for the purpose of applying them to the subject-matter and thus give effect to the deed. While it is true that a deed must so describe land sought to be conveyed thereby that it can be indentified, that is certain which can be rendered certain, and in construing a doubtful description, in a grant the court will put itself in the position of the contracting parties as near as possible and consider the circumstances ,of the transaction between them! and] then read and interpret the words used in the light of these circumstances.” The proof aliunde in this case located the lands of plaintiffs on Coal Bank Road; it located the private road; it located the lot pointed out by John Kleine to his sister; it located the cottage in actual existence when the lease was written; it located the defendant in possession with the knbwledge and consent of plaintiffs. With this information the surveyor said he could and did locate the leased ground. Under the rule in Hubbard’s case, supra, the judgment nisi is rigjht and should be affirmed. It is so ordered. All concur, Blair, P. J., in result.