Property Law

Editor:
David F. Neiers, Esquire
Robert N. Faulkner, Esquire

In a quiet title action, a non-party to a deed, in an effort to prove title to the property in question, is permitted to present extrinsic evidence to challenge that deed even if the deed appears to be unambiguous.  Robson v. Diem, No. 71084 (Mo. App. W.D., August 24, 2010), Mitchell, J.
On December 3, 2002, Rick Robson ("Robson") signed a contract to purchase Lot 15 of Shelly Estates in Parkville, Missouri from Thomas and Katherine Walker (the "Walkers").  Two days later on December 5, 2002, the Walkers executed a deed to Sharla Johnson ("Johnson") that contained in its legal description, Lot 20 and Lot 15 of Shelly Estates.  Neither the Walkers nor Johnson prepared the deed and all parties to the deed acknowledged the intent was to only transfer Lot 20 and not Lot 15.  The sale of Lot 20 to Johnson was secured by a deed of trust to First Magnus Financial Corporation ("First Magnus") and that deed of trust contained in its legal description, both Lot 15 and Lot 20.  A deed to Lot 15 was eventually executed on February 27, 2003 to Robson.  Johnson defaulted and the deed of trust was foreclosed, without notice being provided to Robson.  A trustee's deed containing both Lot 15 and Lot 20 was then executed to Federal National Mortgage Association, who then later conveyed the same property to Bobbi Jo Diem and Abdulhamid Zlitni (collectively, the "Diems"). 
On April 25, 2008, Robson filed an action to quiet title to Lot 15.  Thereafter, Robson, the Diems and Countrywide, as successor to First Magnus, all filed motions for summary judgment.  The trial court granted the Diems' motion and Countrywide's motion.  Robson appealed, arguing that he should have been permitted to introduce evidence establishing his equitable title and the mutual mistake in the legal title that passed to Countrywide.  Countrywide argued that extrinsic evidence should not be permitted to controvert the language in the deed if the language is clear and unambiguous.  That rule of law is correct with respect to the parties to the deed, but a third party may present extrinsic evidence to challenge a seemingly unambiguous instrument.  This court found that the trial court's exclusion of Robson's extrinsic evidence was in error. 
Robson also argued that the trustee under the First Magnus deed of trust should have provided him with notice of the foreclosure as an owner of Lot 15 and such failure invalidates the foreclosure sale.  Because of Robson's recorded deed, a search of the records in the office of the recorder of deeds may have shown the deed and there is a factual issue as to whether Robson should have received notice making summary judgment inappropriate.
HeldReversed and remanded for trial. 

Missouri statute pertaining to how public roads are abandoned applies to any public road regardless of how the land containing the public road was obtained.  McCullough v. Doss, No. 90673 (Mo. banc, July 16, 2010), Teitelman, J.
Lynn Kay McCullough and Shirley Ann McCullough ("Plaintiffs") and Nadine Doss and Howard Allen ("Defendants") own property separated by a former public road.  Plaintiffs brought a quiet title action claiming ownership of the road up to the centerline by way of deed and the rest of the road by way of adverse possession and abandonment.  Defendants argued that the road remained a public road as it was not abandoned or vacated.  The trial court quieted title to Plaintiffs.  Plaintiffs relied on Section 228.190.1, RSMo Cum. Supp. 2007, to the effect that the road was abandoned and presented evidence showing that more than five years passed since the public, last used the road.  The Defendants argued that Plaintiffs' argument and reliance on Section 228.190.1 should fail as a matter of law because that section only applies to roads created with land voluntarily conveyed to a county and because it could not be determined how the county here acquired the land.
Section 228.190.1 could not be relied upon for determining how the road could be abandoned.  Defendants' argument relied on two Missouri appellate decisions; Coffey v. State ex rel. County of Stone, 893 S.W.2d 843 (Mo. App. 1995) and Kleeman v. Kingsley, 167 S.W.3d 198 (Mo. App. 2005).  This Court reviewed Coffey and Kleeman and additional cases in Missouri and came to the conclusion that Coffey and Kleeman misinterpreted Section 228.190.1 and should no longer be relied upon.  The Court reviewed cases prior to Coffey and Kleeman and determined that the plain language of Section 228.190.1 is that the Plaintiffs only need to prove what is required under the statute, namely, nonuse by the public for five years continuously.
Held.  The judgment of the trial court is affirmed and Coffey and Kleeman may no longer be followed with respect to the nonuse provision of Section 228.190.1.   

The Missouri Bar Courts Bulletin, 11-Jan