White v. Kentling

• Decision Date: 13 December 1939
• Docket Number: 36128
• Citation: 134 S.W.2d 39,345 Mo. 526
• Parties: Louis White, Frank Kentling, T. R. Welch, Ben Kentling, and Delbert Hammond, Directors of the Bank of Highlandville, as Trustees of the Bank of Highlandville in Liquidation, Appellants, v. Frank Kentling, Ben Kentling, W. M. Kentling, Charles Kentling, and the Unknown Heirs of F. Kentling, Sr., and Katie Kentling
• Court: Missouri Supreme Court

134 S.W.2d 39

345 Mo. 526

Louis White, Frank Kentling, T. R. Welch, Ben Kentling, and Delbert Hammond, Directors of the Bank of Highlandville, as Trustees of the Bank of Highlandville in Liquidation, Appellants, v. Frank Kentling, Ben Kentling, W. M. Kentling, Charles Kentling, and the Unknown Heirs of F. Kentling, Sr., and Katie Kentling

No. 36128

Supreme Court of Missouri

December 13, 1939

Appeal from Christian Circuit Court; Hon. Robert L. Gideon Judge.

Reversed and remanded for further proceedings.

Omer E. Brown for appellants.

The right in contingent remainder may be adjudicated in a suit to quiet title. Audsley v. Hale, 303 Mo. 451, 261 S.W 117. An action to quiet title is to determine the existing title and not to reform a deed. Russ v. Hope, 265 Mo. 638 178 S.W. 447. "And" does not mean "or" or vice versa, defined. Eckles v. Ryland, 256 Mo. 449; 18 C. J., p. 273, secs. 235, 9B. The law favors vested estate. Tindell v. Tindell, 167 Mo. 225; Eckle v. Ryland, 256 Mo. 449. Random words of scrivener do not change covenant of warranty. Ashbough v. Ashbough, 273 Mo. 353. In construing a deed, intent of parties must control and be given effect. Straus v. Nichols Land Co., 37 S.W.2d 505. No evidence to show Frank Kentling is only survivor of grantors. He who asserts survivorship must prove it. Abrams v. Unknown Heirs, 317 Mo. 216, 295 S.W. 83. The court should have rendered interlocutory judgments by default against all other defendants, in favor of plaintiffs. Sec. 1077, R. S. 1929. The rule of construction is against grantor and in favor of grantee. 18 C. J., pp. 263, 345, secs. 219, 347. Conditions subsequent are not favored. Henry v. Excelsior Springs Co., 277 Mo. 508, 211 S.W. 9; Haydon v. St. Louis Ry. Co., 222 Mo. 126, 121 S.W. 15; Reynolds v. Reynolds, 234 Mo. 144, 136 S.W. 411.

Tom R. Moore for respondent.

Generally, parol evidence cannot be received to contradict, vary, add to, or subtract from the terms of a written contract. Rogers v. Fremder, 261 S.W. 105, and especially where an instrument contains no latent ambiguities; Reigart v. Mfgs. Coal & Coke Co., 117 S.W. 61. Neither are statements subsequent or prior to the making of a written instrument competent to impeach the same. Aurora Water Co. v. Aurora, 31 S.W. 946; State ex rel. Chaney v. Grinstead, 282 S.W. 715. And more especially does such rule apply where there is no intimation of fraud, accident, or mutual mistake. Nor can one destroy the effect of the language of his written contract by oral testimony. Bittlecomb v. General Accident Assur. Corp., 152 S.W. 103; Hellrung v. Viviano, 7 S.W.2d 288. As the rule to deeds is as follows: Where a deed has been delivered, it henceforth speaks for itself, unaffected by any conditions or limitations not written thereon. Miles v. Robertson, 167 S.W. 1000; Williams v. Reid, 37 S.W.2d 537. Parol evidence is inadmissible to vary terms of a written contract or to modify its legal effect. Ocean Accident & Guarantee Corp. v. Mo. Engineering & Contracting Co., 63 S.W.2d 196: Coke Co. v. Gregor, 44 S.W.2d 2. And certainly evidence is not admissible to vary or contradict terms of a written agreement or to substitute a new or different contract. Employers' Indemnity Corp. v. Garrett, 38 S.W.2d 1049.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action to quiet and determine title to certain real estate in Christian County, Missouri. The petition alleged that plaintiffs were "the trustees of the Bank of Highlandville in Liquidation; that the Bank of Highlandville was a banking corporation regularly organized and existing under and by virtue of the laws of the State of Missouri, and that on June 5, 1936, said institution went into voluntary liquidation, and by order of the Circuit Judge, . . . the above named petitioners took charge of the said institution for the purpose of liquidating the same." It is alleged that plaintiffs are in possession of the particular tract of real estate therein described and that their interest therein is in fee simple.

The petition further alleged: "Plaintiffs state that by reason of a defective deed of conveyance executed on the 12th day of August, 1919, by F. Kentling, Sr., and Mrs. Katie Kentling, that said defect casts a cloud upon the title to said real estate, but does not in fact detract from the title itself, but merely affects the merchantability of said title. Your Petitioners, in order to improve the title and perfect the merchantability of said title from adverse claims which might hereafter be made by the defendants herein or their heirs, pray that the defendants be summoned to show cause, if any reason they have, why this title in fee simple should not be lodged in the Plaintiffs herein by decree of Court." Plaintiffs thereupon prayed the court to declare the title in fee simple to be in plaintiffs, and further asked for general relief.

The abstract of the record recites that "service was had on all defendants by waivers filed and by publication filed." Frank Kentling (respondent here) was the only defendant to appear and file an answer. His answer admitted that the Bank of Highlandville was a banking corporation, but denied that said bank and the other plaintiffs were the owners in fee simple of the lands described in plaintiffs' petition. The answer then averred that the mother and father of the defendants, "prior to the time that the Bank of Highlandville took possession of said lands, were the owners thereof in fee simple;" that they by deed conveyed said lands to the Bank of Highlandville, but, by the terms of the instrument, there was a clause providing "that when such real estate was no longer used by the Bank of Highlandville for a bank, that the same reverted to the grantors or their assigns." It is averred that the bank accepted the conveyance with this clause in it and placed the instrument of record. It is then alleged that, "Neither the Bank of Highlandville nor anyone else for it has any rights or title to said lands save and except in the use of same for a bank;" that "the Bank of Highlandville has ceased to do business, as a bank, but is not in liquidation, and by virtue of the premises the defendant herein, or the defendant and his wife are the owners thereof in fee simple." In the answer the defendant prayed "that the court adjudge and decree that the fee simple title be vested in the defendant Frank Kentling or him and his wife subject to the user of said Bank of Highlandville so long as it may be used for the purpose of a banking institution."

The reply of plaintiffs denied that there was a clause of reservation in the deed which provided, "that when said real estate is no longer used by the Bank of Highlandville for a bank that the same reverts to the grantors or their assigns," but set out haec verba the alleged reservation clause as follows: "In case this land is not used for the purpose of a bank and this corporation passes out of existence said property is to revert to the grantors." It alleged that at the time of the execution of the deed the grantors herein and the subscribers for stock in the proposed bank discussed the possibility that the Commissioner of Finance might refuse a charter for the bank; that the said clause was inserted in the deed so that in the event a charter was refused, the land would go back to the grantors. It further alleged that the certificate of incorporation was granted; that a banking institution was established; and that by reason thereof said bank, under the terms of the deed, became the owner in fee simple of the real estate.

A jury was waived, the cause submitted to the court and a judgment rendered in favor of the defendants. After motion for a new trial was filed and overruled the plaintiffs appealed.

The deed referred to in the pleadings was offered in evidence. It is a warranty deed in regular form (except as hereafter stated), dated August 12, 1919, from Frank Kentling, Sr., and Mrs. Katie Kentling to the Bank of Highlandville, consideration $ 1, and describes the real estate in question. The acknowledgment is in due form and bears the same date. Immediately after the covenants of warranty in the deed is the following provision, "In case this land is not used for the purpose of a Bank and this Corporation passes out of existence said property is to revert to Grantors." It was admitted that the Articles of Association of the bank are dated August 12, 1919, and that a charter was granted on September 2, 1919. The evidence does not show when the deed was delivered, but it was filed for record in the Recorder's office of Christian County on July 3, 1930. Plaintiffs offered as a witness, one Charles F. Boyd, who testified that he was a lawyer, a notary public and county superintendent of schools; that he recognized the handwriting in the deed; that he had drafted the deed on August 12, 1919, at a meeting held for the purpose of organizing the Bank of Highlandville.

The witness was then requested to explain to the court why the alleged reversion clause was written in the deed. This request was denied. The court ruled that the instrument spoke for itself and that oral evidence was inadmissible to dispute or contradict the terms of the written instrument. Plaintiffs thereupon rested their case and defendants' attorney orally requested a directed verdict and judgment for defendants. The court remarked that the demurrer would be sustained. No written request was made or acted upon. A request was thereupon made by plaintiffs for a finding of facts and conclusions of law. The abstract of the record shows the following:

"Finding of facts.

"By the Court: . . . The court finds that this is a quiet title suit, and is based upon a deed given on the 12th day of August 1919 conveying certain...