BEVERLY BARLOW v. SAXON HOLDINGS TRUST and ERIC FARRAN and LEANN FARRAN as its Trustees

• Court: Missouri Court of Appeals
• Decided: October 21, 2022
• Docket: SD37361
• Status: Published

Opinion

In Division

BEVERLY BARLOW, ) ) Respondent, ) ) No. SD37361 vs. ) ) Filed: October 21, 2022 SAXON HOLDINGS TRUST and ERIC ) FARRAN and LEANN FARRAN as its ) Trustees, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY

Honorable Michael O. Hendrickson, Judge

AFFIRMED

Saxon Holdings Trust (“Saxon”) appeals the judgment in favor of Respondent

Beverly Barlow (“Barlow”) on her suit for declaration of title to a parcel of land claimed

by both parties. The court held that Barlow has title both by deed and by adverse

possession. We affirm the judgment of the trial court.

Factual and Procedural Background

Barlow and her husband, Wayne,1 purchased land in 1987 by warranty deed

1 We refer to Barlow and Farran family members by their first names to distinguish between persons with

the same last name. No familiarity or disrespect is intended. (“Barlow Deed”), which conveyed property described as follows:

The W ½ of the SW ¼ of the SW ¼ of Section 13; the W ½ of the NW ¼ of Section 24; also beginning at the NE corner of the E ½ of the NE ¼ of Section 23, running thence Southwesterly along the fence 40 rods, thence running South along the fence to a point on the South bank of the Finley Creek, thence running Southeasterly to the SE corner of the SE ¼, NE ¼ of said Section 23, thence North on the Section line to the place of beginning, all being in Township 28, Range 17, Webster County, Missouri. (Emphasis added.)

An existing fence line ran north to south near the western edge of the Barlows’ land, and

the Barlows believed when they purchased the land that the fence marked the property

line. Since 1987, the Barlows possessed and used the land up to the fence line for grazing

cattle and putting up hay.

In 1992, the Barlows’ son, Michael Barlow, purchased a tract of land bordering the

Barlows’ property on the west side. Like his parents, Michael used his land for grazing

cattle and putting up hay. Michael and his daughter, Whitney, lived on his land. Whitney

helped Wayne and Beverly on their farm when she was younger.2 Michael and Wayne

occasionally helped on each other’s farms, but the two pieces of land were generally kept

separate and their uses were not intermingled.

Michael passed away in 2011. Eric and LeAnn Farran purchased Michael’s land at

a foreclosure sale in 2013 and executed a warranty deed (“Saxon Deed”), conveying the

land into Saxon, a trust for which the Farrans are trustees. The Saxon Deed described the

land, in relevant part, as follows:

The SE ¼ SE ¼ of Section 14, also a part of the E ½ of the NE ¼ of Section 23 described as follows: beginning at the NE corner of the NE ¼ NE ¼ of said Section 23 and running SW 40 rods; thence due south to Finley Creek; thence in a southeasterly direction to the SE corner of the SE ¼ NE ¼ . . . . (Emphasis added.)

2 Wayne passed away in 2015. In 2019, Beverly executed a beneficiary deed to Whitney as grantee. The land described in the beneficiary deed is described identically in the Barlow Deed.

2 In the spring of 2020, Eric Farran viewed a plat map which indicated that the

property line between the Saxon and Barlow farms was further east than the fence line.

He then engaged a surveyor, Barry Mackey, who conducted a survey of the east boundary

of the Saxon property. Mackey’s survey concluded that the fence line was not the property

line, as both landowners had previously assumed. Instead, Mackey found the property

line was on the “40-rod line,” a line due south from a point 40 rods southwest from the

northeast corner of the Barlow land. After receiving the survey results from Mackey, Eric

met with Beverly, Whitney, and the Barlows’ family friend Denzel Young and informed

them of the survey findings. In September 2020, Eric put up an electric fence along the

40-rod line in order to mark his claimed property. With this electric fence, the Farrans

have denied the Barlows access to the land between the 40-rod line and the original fence.

Shortly after Eric put up the electric fence, Barlow engaged a different surveyor,

Gary Drennan, to conduct his own survey of the Barlow land. Unlike Mackey, Drennan

determined that the property line was on the original fence line, as the Barlows had always

assumed. These conflicting surveys created an area of disputed property comprising

approximately 7.5 acres between the original fence and the 40-rod line.

Barlow filed suit against Saxon in the Circuit Court of Webster County, seeking to

quiet title to the disputed property. She also claimed title to the property through adverse

possession. After a bench trial, the trial court entered judgment in favor of Barlow on

both counts, finding the description of the property line in the deeds ambiguous and

resolving that ambiguity in favor of Barlow. The trial court also found that Barlow had

proven every element of adverse possession. Saxon appealed the judgment.

3 Discussion

Saxon presents three claims of error: (1) the trial court erred in finding ambiguity

in the deeds and resolving the ambiguity in favor of Barlow 3, (2) the trial court erred in

finding that Barlow proved each element of adverse possession by clear and convincing

evidence, and (3) the trial court erred in finding adverse possession even though,

according to Saxon, Barlow admitted Saxon’s title to the disputed property.

Existence of Ambiguity in the Deeds

Whether a document is ambiguous is a question of law that is reviewed de novo on

appeal. Denny v. Regions Bank, 527 S.W.3d 920, 925 (Mo.App. 2017). A deed is

ambiguous when its terms “are susceptible of more than one meaning ‘so that reasonable

persons may fairly and honestly differ in their construction of the terms.’” Hinshaw v.

M-C-M Props., LLC, 450 S.W.3d 823, 827 (Mo.App. 2014) (quoting Erwin v. City of

Palmyra, 119 S.W.3d 582, 585 (Mo.App. 2003)). An ambiguity exists where there is

duplicity, indistinctness, or uncertainty in the meaning of language, i.e., if the language is

reasonably open to different constructions. Ethridge v. TierOne Bank, 226 S.W.3d

127, 131 (Mo. banc 2007). A document is not ambiguous merely because the parties

disagree as to its construction. Id.

Two types of ambiguities may arise in a document: a patent ambiguity and a latent

ambiguity. Emerald Pointe, L.L.C. v. Jonak, 202 S.W.3d 652, 659 (Mo.App. 2006).

A patent ambiguity exists on the face of the document. Id. A latent ambiguity exists when

3 Point One is multifarious in that it presents more than one claim of reversible error in a single point.

Although we could deny the point on that basis, we exercise our discretion to review these arguments ex gratia. City of Joplin v. Wallace Bajjali Dev. Partners, L.P., 522 S.W.3d 327, 330-31 (Mo.App. 2017).

4 a writing is unambiguous on its face, but collateral matters render its meaning uncertain.

Id. In the context of land deeds, a latent ambiguity exists when there is no uncertainty in

the description of the land on the face of the deed, but an uncertainty “is shown to exist

for the first time by matter outside the writing, when an attempt is made to apply the

language to the ground.” Becker v. Workman, 530 S.W.2d 3, 6 (Mo.App. 1975).

Neither the Barlow Deed nor the Saxon Deed contains a patent ambiguity. The

language of neither deed is ambiguous on its face, as neither contains terms that are

plainly uncertain and neither is self-contradictory. At issue in this case is a latent

ambiguity. The Barlow Deed’s language describes the boundary at issue as “running

thence Southwesterly along the fence 40 rods, thence running South along the fence to a

point on the South bank of the Finley Creek . . . .” However, no fence runs south at the

point 40 rods southwest from the starting point, nor is there evidence that there has ever

been such a fence in that location. There is, though, a long-standing fence running south

that begins further southwest than the 40-rod point, and this fence follows monuments

on the ground from previous surveys. The Saxon Deed does not contain the “along the

fence” call, but instead says “running SW 40 rods; thence due south to Finley Creek.” The

discrepancy between these deeds and the uncertainty in applying the Barlow Deed

produces a latent ambiguity.

Ambiguity in a deed exists when reasonable persons may fairly disagree as to the

construction of its terms. Hinshaw, 450 S.W.3d at 827 That is the case here. Both

parties commissioned surveys of the disputed property, and both surveyors testified at

trial as to their conclusions. Surveyor Drennan, who was hired by Barlow, put a greater

emphasis on the “along the fence” language and utilized prior survey markers and a 1934

5 survey of the land to inform his investigation. He ultimately found that Barlow’s land

extended to the fence line. Alternatively, Surveyor Mackey, who was hired by Saxon,

focused more on the “40 rod” language and found the 1934 survey to be less informative.

He determined that Barlow’s land only extended to the 40-rod line. These two surveyors

both have extensive training and experience in the field, both used accepted surveying

techniques, and both relied on the same deed language. Yet, they came to different

conclusions as to where the boundary between Barlow and Saxon’s land is located. This

demonstrates that reasonable persons may fairly disagree as to the construction of the

Barlow Deed.

Saxon argues that a finding of ambiguity unreasonably ignores the 40-rod point

and 40-rod line called out in both deeds. However, Saxon’s preferred construction of the

deeds would likewise ignore the “along the fence” language in the Barlow Deed. That each

party’s preferred construction creates tension between different terms in the deeds is a

clear sign of ambiguity. Saxon also argues that no uncertainty results from the usage of

“along the fence.” It cites a dictionary definition of “along” as including “in parallel with

the length or direction of, as in a ship sailing along the coast.” But “along” can also be

defined as “through, on, beside, over, or parallel to the length or direction of,” as in: the

chairs were lined up along the wall. RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY

59 (2d ed. 2001). The various meanings of “along” give very different meanings to “along

the fence,” so we cannot fall back on a commonly accepted meaning of the words to

declare a lack of ambiguity. The trial court did not err in finding an ambiguity in the legal

descriptions.

6 Trial Court’s Resolution of the Ambiguous Deeds

Although the existence of ambiguity in a deed is a question of law, the resolution

of such ambiguity is a factual issue. Amusement Ctrs., Inc. v. City of Lake Ozark,

271 S.W.3d 18 (Mo.App. 2008). In reviewing issues of fact, we must view the evidence in

the light most favorable to the trial court’s judgment, accept evidence favorable to the

judgment as true, and disregard contradictory evidence. McElvain v. Stokes, 623

S.W.3d 769, 773 (Mo.App. 2021). We “will affirm the trial court’s determination ‘unless

there is no substantial evidence to support it, unless it is against the weight of the

evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’”

Id. at 772 (quoting Watson v. Mense, 298 S.W.3d 521, 525 (Mo. banc 2009)).

When an instrument is ambiguous, a court may use parol evidence to interpret the

meaning of the language in the instrument. Emerald Pointe, 202 S.W.3d at 659. “If

there is an ambiguity in a land description, ‘the court should assume the position of the

parties to the deed as nearly as possible, consider the circumstances of the transaction

and read and interpret the words used in that light.’” Bass Pro Outdoor World, L.P.

v. Wilson, 965 S.W.2d 890, 893 (Mo.App. 1998) (quoting Hooks v. Spies, 583 S.W.2d

569, 571 (Mo.App. 1979)). The “cardinal rule of construction is that a deed must be

construed as nearly as may be by the parties’ intentions . . . .” Jablonowski v. Logan,

169 S.W.3d 128, 131 (Mo.App. 2005). A court may infer the parties’ intent “from the

instrument itself, the circumstances surrounding and leading up to execution of the

instrument, and the subject matter and situation of the parties at the time.” Denny, 527

S.W.3d at 926. Other rules of construction may be used, including:

(1) a particular or specific description of land in a deed ordinarily will prevail over a more general description, (2) in construing ambiguous

7 land descriptions in deeds, doubts should be resolved in favor of the grantee and against the grantor, (3) “possession by the grantee and payment of taxes thereon shows (sic) the lands intended to be conveyed,” and (4) “where description of land is ambiguous but parties have occupied the property according to one construction, the courts will follow the construction and possession of the property even though for less than the period of limitation.”

Snadon v. Gayer, 566 S.W.2d 483, 488-89 (Mo.App. 1978). However, these rules of

construction will always yield to the intent of the parties where such intent can be

ascertained. Id. at 489.

The trial court’s resolution of the ambiguity in the deeds in favor of Barlow was

supported by substantial evidence. When the Barlow Deed was executed, the fence along

the disputed property was in place, and the Barlows believed that they had acquired all

the property up to the fence. The Barlows possessed and used the disputed property

continuously from the time they acquired their land, and neither the Farrans nor their

predecessors in interest challenged the Barlow claim to the disputed property until

recently. The court’s judgment emphasized Barlow’s longtime possession of the disputed

land and stated that it found the survey and testimony by Surveyor Drennan to be

credible. Such a finding of credibility is a matter for the trial court, which “is free to

believe or disbelieve all, part or none of the testimony of any witness.” McElvain, 623

S.W.3d at 772 (quoting Watson, 298 S.W.3d at 525). In resolving the ambiguity in favor

of Barlow, the court considered “the evidence and testimony of the competing surveys and

the deeds and circumstances under which the parties acquired their property . . . .” The

judgment contained enough supporting evidence to satisfy the deferential standard of

review. The trial court did not err in resolving the ambiguity in the legal description in

favor of Barlow and in accordingly determining that Barlow has title by deed to the

disputed property. Point I is denied.

8 Having found no error in the court’s resolution of the ambiguous deed language,

we need not address Saxon’s challenges to the alternative ground for relief, adverse

possession. See Stacey v. Redford, 226 S.W.3d 913, 919 (Mo.App. 2007). Judgment

affirmed.

JACK A. L. GOODMAN, C.J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

JENNIFER R. GROWCOCK, J. – CONCURS