E.D. Mitchell Living Trust v. Murray

818 S.W.2d 326, 1991 Mo. App. LEXIS 1690, 1991 WL 226367
CourtMissouri Court of Appeals
DecidedNovember 7, 1991
DocketNo. 17216
StatusPublished
Cited by5 cases

This text of 818 S.W.2d 326 (E.D. Mitchell Living Trust v. Murray) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E.D. Mitchell Living Trust v. Murray, 818 S.W.2d 326, 1991 Mo. App. LEXIS 1690, 1991 WL 226367 (Mo. Ct. App. 1991).

Opinion

PARRISH, Judge.

This is an appeal from a judgment of the Circuit Court of Texas County that reformed a purchase money promissory note executed by respondents Decatur Walter Mitchell, Travis Burke Mitchell and Michele Verilla Mitchell. The promissory note was payable to the order of appellants Maurice E. Murray and Bertha W. Murray. It was secured by a deed of trust to certain real estate in Texas County, Missouri, that the makers of the promissory note had purchased from appellants. This court affirms in part; reverses in part; and remands with instructions.

The real estate in question was purchased by Decatur Walter Mitchell, Travis Burke Mitchell and Michele Verilla Mitchell from appellants July 1, 1981. The purchase price for the real estate was $1,050 per acre. The amount of acreage in the tract was calculated by Mike Manier, a registered land surveyor, to be 90.9 acres, resulting in a total purchase price of $95,-445. The promissory note represented part of the purchase price and was in the face amount of $60,000. The balance of the purchase price was paid to appellants at the time the real estate sale was closed. The promissory note bore interest at the rate of ten percent (10%) per annum. It was dated July 13, 1981, and was payable in semi-annual payments of $3,000 each, plus interest. Its payments were due “on the 15th day of January and July of each year, beginning on the 15th day of January, 1982, until fully paid.”

The original purchasers conveyed the real estate to the E.D. Mitchell Living Trust, Esty Decatur Mitchell, Trustee, by deed dated February 25, 1986. The deed was recorded in the deed records of Texas County, Missouri, on May 3, 1986. Payments were made as required by the terms of the promissory note to and through January 15, 1987.

In September 1986, respondents caused the property to be surveyed. The survey was performed by Mike Manier, the same surveyor who had calculated the amount of acreage in the tract when the Mitchells acquired it. According to Mr. Manier’s 1986 survey, the number of acres that had been conveyed by appellants was 82.98 acres, 7.92 acres less than the number of acres upon which the purchase price was calculated. The 1986 survey measured only to the low-water mark on the east bank of the Piney River, whereas the original calculation included the land in the river bed. The 1986 survey also used, as one of its comers, a point that the surveyor determined to be “[t]he northwest comer of the southeast quarter of the southeast quarter of section 24, 32 north, range 10 west," rather than a “heap of stones” that appellant Maurice Murray pointed out as the location for that corner when the amount of acreage was calculated to determine the sales price. The difference between the 1981 calculation and the determination that was based upon the 1986 survey was “[a]bout 7.9 acres, slightly less than eight acres.” The difference that the surveyor attributed to the use of different locations for the questionable corner was .93 acre. “The other seven acres would be in the stream bed.”

Respondents filed this action in the trial court on December 28, 1988. Respondents requested, in Count I, that the trial court determine the amount of acreage that had been conveyed by appellants; that the trial court “conduct an accounting of the proceeds paid” on the promissory note; and that it “thereafter reform the Promissory Note by reducing the principal amount and accrued interest in order to properly reflect the originally agreed price on the basis of mutual mistake of the parties.” In Count II, respondents sought to enjoin appellants from proceeding to foreclose on the real estate pursuant to the power of sale contained in the deed of trust that secured payment of the promissory note. Respondents later, by Count III in a second amended petition, interpleaded the sum of $32,400 into the court, representing the balance due by the terms of the promissory note that respondents sought to reform. Respondents alleged in Count III that a [328]*328substantial portion of the funds interplead-ed “represented] an overpayment of principal and interest of the purchase price which is the subject of this cause of action, and that the amount of such overpayment ... together with interest accruing thereon should be distributed by the Texas County Circuit Clerk and returned to [respondents].”

The trial court found the issues in favor of respondents on all counts. It ordered reformation of the promissory note by changing its face amount from $60,000 to $51,684. The trial court found that respondents had deposited the sum of $32,400 in the registry of the court and, in addition, had deposited $5,000 to secure an injunction bond they had given. The judgment ordered the clerk “to pay to [respondents] from the principal funds in trust the sum of Seventeen Thousand Seventy-Eight Dollars and Thirty-Eight Cents ($17,078.38) (i.e. 52.7% of the initial deposit) plus pro rata interest accrued thereon to date.” The judgment further ordered “that the Texas County Circuit Clerk shall pay to [appellants] Maurice E. Murray and Bertha W. Murray, his wife, the sum of Fifteen Thousand Three Hundred Twenty-One Dollars and Sixty-Two Cents ($15,321.62) (i.e. 47.3% of the initial deposit) plus pro rata interest thereon accrued to date.” The injunction bond was released and the amount securing that bond was ordered paid to Esty Decatur Mitchell “plus any accrued interest.” The judgment ordered, upon payment of the funds to the parties in the manner prescribed, that “the promissory note ... is hereby declared satisfied and paid in full and the Deed of Trust securing the same ... is hereby ORDERED to be released and the same shall have no further effect as a lien against the real estate.” Appellants were ordered “to take the necessary action including but not limited to the execution of an appropriate Deed of Release in order to release the aforementioned Deed of Trust.” The trustee on the deed of trust was permanently enjoined “from instituting foreclosure proceedings.”

Appellants present two points on appeal. By their first point, appellants contend that the trial court erred in reforming the promissory note because appellants owned, prior to their sale to Decatur Walter Mitchell, Travis Burke Mitchell and Michele Verilla Mitchell, the land to the center of the Piney River and that land was included in the parcel that was conveyed to the Mitchells. By their second point on appeal, appellants contend that the trial court erred in reforming the promissory note because appellants owned the .93 acre in the area where the “heap of stones” was located and that land was included in the parcel that was conveyed to Decatur Walter Mitchell, Travis Burke Mitchell and Michele Verilla Mitchell.

The land that was conveyed to Mitchells was described by metes and bounds. The course in the description that bordered the Piney River began where the east line of the northeast quarter of the northeast quarter of Section 25, Township 32 North, Range 10 West intersected the river. It ran “thence in a Northwesterly course following Piney River to the true place of beginning” of the tract of land conveyed. The reference to the river as boundary was consistent with the manner in which the tract of land was described when it was acquired by appellant Maurice E. Murray. The Piney River was a boundary along a side of the tract that was conveyed to him. The warranty deed to Murray described the land conveyed in the following manner:

All that part of the North East Quarter of the North East Quarter of Section Twenty five (25) lying East of Piney River;

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Cite This Page — Counsel Stack

Bluebook (online)
818 S.W.2d 326, 1991 Mo. App. LEXIS 1690, 1991 WL 226367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ed-mitchell-living-trust-v-murray-moctapp-1991.