Yocom v. Kindle

766 S.W.2d 140, 1989 Mo. App. LEXIS 286, 1989 WL 17847
CourtMissouri Court of Appeals
DecidedMarch 3, 1989
DocketNo. 15776
StatusPublished
Cited by3 cases

This text of 766 S.W.2d 140 (Yocom v. Kindle) 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
Yocom v. Kindle, 766 S.W.2d 140, 1989 Mo. App. LEXIS 286, 1989 WL 17847 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

Plaintiffs Bill Joseph Yocom (“Bill”) and Dollie Amanda Yocom (“Dollie”) sued defendant Sheridan E. Kindle, Executor of the Estate of Dealie E. Drennon, deceased, praying the trial court to (1) set aside and cancel a contract between plaintiffs and defendant for the purchase of a tract of real estate, (2) set aside and cancel a warranty deed from defendant conveying the tract to plaintiffs, and (3) award plaintiffs $29,300, representing the purchase price paid by plaintiffs to defendant for the tract. The trial court entered judgment as prayed.

Defendant appeals, briefing two points. The first avers the trial court erred in receiving in evidence (a) the testimony of a surveyor regarding a survey he made of the tract, together with the plat of his survey, (b) the testimony of the same surveyor regarding the plat of the subdivision where the tract lay, together with a copy of the subdivision plat, and (c) the testimony of the county assessor regarding “the property ownership map,” together with a copy of the map. Defendant’s second point charges the trial court with error in denying defendant’s motion for judgment at the close of plaintiffs’ evidence and in entering judgment for plaintiffs, in that proof of the location of the boundary lines of the tract was an element of plaintiffs’ cause of action and plaintiffs’ evidence on that element was of no probative force.

The plat of the survey referred to in clause “(a)” of the second sentence of the preceding paragraph was designated as Plaintiff’s Exhibit 4 at trial.1 A copy of the relevant portion of the exhibit is appended to this opinion and labeled “Exhibit 4.” The “Existing Roadway” shown on the exhibit runs generally north to south, north being at the top of the exhibit and south at the bottom.

The tract in dispute, as described in the warranty deed referred to in clause “(2)” of the first sentence of this opinion, is:

“Lot 109 and Lot 110 in the Golden Goose Subdivision ... according to the Plat thereof on file and of record in ... the Office of the Recorder of Deeds of Camden County, Missouri, EXCEPTING THEREFROM, a parcel of land heretofore conveyed to Michael J. Cesaretti and Robin D. Cesaretti, his wife, as shown by instrument recorded in Book 243 at Page 981, records of Camden County, Missouri.”

The conveyance to the Cesarettis referred to in the above-quoted description was executed by defendant February 18, 1983, and conveyed the following land:

“In the Golden Goose Subdivision ... according to the Plat thereof on file and of record in ... the Office of the Recorder of Deeds for Camden County, Missouri:
[142]*142All that part of Lot 110 described as follows: Commencing at the Southeast comer of said Lot 110, being also a point on the East right-of-way line of existing roadway; thence Northerly along said Eastern right-of-way line to a point on the Northern boundary line of said Lot 110 (being the boundary line common to said Lot 110 and Lot 111) for the point of beginning; thence Easterly along said boundary line to the Northeast comer of said Lot 110; thence Southwesterly along the waters edge of the Lake of the Ozarks a distance of 45 feet; thence Westerly to a point on the Eastern right-of-way of said roadway which lies South a distance of 10 feet from point of beginning; thence North along said Eastern right-of-way line 10 feet to the point of beginning.”

The tract conveyed to plaintiffs by defendant was an inventoried asset of the estate of Dealie E. Drennon, deceased. Defendant, as executor of the estate, engaged Pine Cone Real Estate of Climax Springs to sell the tract by letter of December 16, 1984. That letter said, in pertinent part:

“3 Bdr Home on 2 Waterfront Lots, 109 & 110 ... (Note Small Strip of worst Water, 10 ft. at road & 45 on water sold, leaving 50 of lot 110 & 50 foot of lot 109 on waterfront.) The best water 109 is not contacted by this strip referred to. It is on north line of lot 110. Leaves total of 100 foot waterfront total.... Easy to Winterize, has heat Tape on water lines & heater in Pump House....”

A letter dated November 24, 1985, from defendant to Glenn Barnes of Pine Cone Real Estate read, in pertinent part:

“Your listing showed the strip sold to Mike Cesaretti in 1983. I will enclose for your use, & send to others if this deal does not Clsoe [sic]. This is a strip of worst water 10 ft. at road, & 45 at waterline. This leaves 50 of water lot 110 & 50 lot 109. I will enclose a copy of lots showing widening of lot 110 toward water, with 95 feet along water. The worst 45 sold to Cesaretti or north line. Before the Truman Dam sometimes water was not up in end of Bay. The Cesarettis & Relatives own lots 111, 112, 113, 114, & house thereon. They also own Strip behind house or above house all along north. They bought it to assure themselves water, & above house to protect their Investment there....
The Legal should be — Lot 109 & all of lot 110, except strip sold Mike Cesaretti, & recorded 3-2-83, book 243, page 981....”

Plaintiffs, husband and wife, came to Camden County in November, 1985, from Arizona, looking for a home to purchase. Bill, age 55 at time of trial,2 is a retired overhead crane operator with an eighth grade education. Dollie, age 54 at time of trial, has a seventh grade education. Neither had ever been a real estate salesperson or surveyor.

Plaintiffs contacted Pine Cone Real Estate and were shown the subject tract by Barnes. They were also shown the letters from defendant dated December 16, 1984, and November 24, 1985, portions of which are quoted supra.

Describing what they saw when they viewed the tract, Bill testified:

“... there was a three-bedroom home like it’s stated in the paperwork, and there was a well and two-car garage, along with two stakes in the back of the property which well cleared the house and also footage behind the well. It was — there was a few feet between the house and the two back stakes.
Q So you were shown stakes at the back of the property?
A Yes.
[[Image here]]
Q ... What you were shown as to the waterfront?
A We were told that our property lines went all the way to the water.
Q Were you told as to how much waterfront there would be?
A 100 foot.
Q Mr. Yocom, were these statements as to the location of the stakes important [143]*143to you in making your decision to make an offer on this property?
A Yes, it was.
Q Was the representation as to the fact that the well was contained on your property important to you in making a decision to purchase this property?
A Yes, it was very much important; otherwise we would not have bought the home.
Q Were the representations as to the amount of lakefront being 100 foot important to you in making your decision to purchase this property?
A Yes, that’s what we were looking for in order to buy here.”

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Cite This Page — Counsel Stack

Bluebook (online)
766 S.W.2d 140, 1989 Mo. App. LEXIS 286, 1989 WL 17847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yocom-v-kindle-moctapp-1989.