Baker v. Clay

Barclay, J. It is conceded that plaintiff’s title must prevail if the description in the deed of trust is good and sufficient in the circumstances to impart notice to subsequent innocent purchasers. No question is made as to its proper acknowledgment or timely record. The attack upon it goes on the theory that the subject-matter of the conveyance is insufficiently described. ' The form of the description follows the well-known subdivisions of the congressional surveys mentioned. Some two hundred and forty superficial acres are embraced within it. The grantor had previously set apart a portion (amounting to forty acres) of the land « as the town of Grayson by a duly recorded plat. He [557] had conveyed a number of town lots and the ‘ ‘ right of way” (one hundred feet wide) for a steam railroad through the town, by deeds duly recorded. Now defendants assert that in this state of facts the description in the deed of trust cannot be taken to pass title to the unsold town lots as against a subsequent purchaser of the latter having no actual notice of it. It is not suggested that the description is vague or indefinite on its face ; but the claim appears to be that it is necessarily uncertain and indefinite in its operation and effect and hence void as to defendants. In this connection defendant’s counsel in his brief declares: “ That an expert by a careful examination of every subsequent conveyance made by Baker, and a comparison of each conveyance with the town plat, might have discovered that the square piece of land, platted as the town of Grayson, was included in the two hundred and forty acres of land described by legal subdivisions, in the deed made by Baker on the twenty-fourth day of March, 1873, is not denied.” The fact that Henry B. Baker did not have title to all the land, which the deed of trust purported to convey, would not of itself invalidate the description, as notice to subsequent purchasers. The deed would transfer such title as he actually had to the whole tract. It would merely be inoperative, by reason of the fact mentioned, to convey such parts of the land as he did not own. This would not be because of any defect in the description itself but on account of defects in the grantor ’ s title to the land described. On this branch of the case we entirely agree with the views expressed in the lucid opinion delivered by Judge Sandusky at the trial. “A person desiring to purchase the lots in controversy would find from the records, without extrinsic aid, that Henry B. Baker platted a certain forty acres of land, described by metes and bounds, as the town of Grayson ; that he then sold certain lots, and thereafter executed a deed of trust [558] upon a tract of land, accurately described, which included the forty acres platted, and which, as between the parties, conveyed all the lots in the town of Grayson not so sold. Thus the record alone, by conveyances and a plat, each definite and perfect in itself, determines and identifies the lots incumbered by the deed of trust. The deed being good between the parties, the fact that you are compelled by indirection to arrive at the lots actually conveyed and incumbered is not a valid objection as long as the record itself by conveyances, perfect and definite in themselves, ascertains and determines the lots conveyed.” We may add that any inaccuracy there may be in the call for quantity is unimportant, since the description is, as we regard it, otherwise sufficient to furnish the means to readily identify the property. It is an accepted rule of construction that metes and bounds in a description control a call therein for acreage. Campbell v. Johnson, 44 Mo. 247; Ware v. Johnson, 66 Mo. 662. Indeed, in the present case the inconsistency between the amount of acres said to be conveyed and the more particular description of the tract is rather informative of the actual effect of the conveyance (which was to transfer a valid title to less than the entire tract described) than a defect in it. The decision of the leading point of controversy, as above indicated, renders it unnecessary to consider some of the other questions discussed by counsel, and leads to an affirmance of the judgment; all the judges concurring.