189 S.W.2d 295 (Mo. 1945), 39454, Davidson v. Eubanks

Docket Nº39454
Citation189 S.W.2d 295, 354 Mo. 301
Opinion JudgeVAN OSDOL
Party NameMargaret Davidson, Roscoe Roberson Pyle, Grace Ruby McGee, Harold Clay Pyle, A. B. Stone, Andrew Edwards, Ollie Atherton, Marvin Rader and Virgil Rader, Appellants, v. Anna Laura Eubanks, Lucy R. Marshall, Administratrix of the Estate of Erastus B. Marshall, Harold Francis Marshall, Mrs. Fay Ross, Lloyd Gale Marshall, Erastus B. Marshall, Jr., Iris
AttorneyEugene A. Farris and W. A. Franken for appellants. Arthur Rogers, William Aull, Jr., and Ike Skelton for respondents.
Judge PanelVan Osdol, C. Bradley and Dalton, CC., concur.
Case DateSeptember 04, 1945
CourtSupreme Court of Missouri

Page 295

189 S.W.2d 295 (Mo. 1945)

354 Mo. 301

Margaret Davidson, Roscoe Roberson Pyle, Grace Ruby McGee, Harold Clay Pyle, A. B. Stone, Andrew Edwards, Ollie Atherton, Marvin Rader and Virgil Rader, Appellants,

v.

Anna Laura Eubanks, Lucy R. Marshall, Administratrix of the Estate of Erastus B. Marshall, Harold Francis Marshall, Mrs. Fay Ross, Lloyd Gale Marshall, Erastus B. Marshall, Jr., Iris Jean Marshall, Forrest Lee Marshall, Lucy R. Marshall, R. E. Parrish, La Crosse Lumber Company, Glen W. Huddleston, Jerome Eubanks, Riley Brown, Sidney Brown, Laudie Fuqua, Henry McKay Cary and George B. Thomas, Guardian and Curator for Howard Marvin Thomas

No. 39454

Supreme Court of Missouri

September 4, 1945

Appeal from Lafayette Circuit Court; Hon. Robert D. Johnson, Judge.

Reversed and remanded.

Eugene A. Farris and W. A. Franken for appellants.

(1) The words "C. P. Roberson and Mary Roberson as tenants in common" set out in the premise of the deed as "party of the second part" are incorporated by reference in every part of the deed where the words "party of the second part" appear. Walker v. Deppe, 346 Mo. 354, 141 S.W.2d l.c. 785. (2) Since "C. P. Roberson and Mary Roberson as tenants in common" was incorporated in every part of the deed where the words "party of the second part" appear, the deed vested in them the title as tenants in common and not as tenants by the entirety. Peters v. Peters, 312 Mo. 609, 280 S.W. 424; Keller v. Keller, 92 S.W.2d 157. (3) The declarations of the grantees in the deed as to the effect of the deed or their intention in having the deed made is not admissible to change the deed even though an answer had sought to reform the deed which the answer in the case at bar did not. Peters v. Peters, 312 Mo. l.c. 625. (4) The contract for the purchase of this real estate was not admissible because the terms of the contract had been merged in the deed. Employers' Indemnity Corp. v. Garnett, 38 S.W.2d 1049. (5) Since this is an action at law, being a suit in ejectment, and since the court sustained the demurrer to the appellants' evidence every particle of evidence in appellants' favor must be taken as true and all conflicting evidence in the respondents' favor as untrue. Since, therefore, there is a conflict in the testimony as to what the intention of the parties were in having the deed executed, the testimony in favor of the appellants that it was intended to create a tenancy in common must be taken as true. Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d l.c. 729; Vincent v. Means, 184 Mo. 327, 82 S.W. 96; Central States S. & L. Assn. v. U.S.F. & G. Co., 334 Mo. 580, 66 S.W.2d 550.

Arthur Rogers, William Aull, Jr., and Ike Skelton for respondents.

(1) Where property is conveyed to husband and wife and there are no limiting words in the operative clauses of the deed; i.e., the granting clause or habendum, they take an estate by the entirety, and where the words "C. P. Roberson and Mary Roberson as tenants in common" appeared only in the premises, but the operative clauses were "unto party of the second part," the operative clauses do not clearly express the intention that husband and wife are to take title as tenants in common, and the grantees will take an estate by the entirety. Peters v. Schachner, 280 S.W. l.c. 428, 312 Mo. l.c. 623; Wilson v. Frost, 85 S.W. 375, 186 Mo. 311; Ashbaugh v. Ashbaugh, 201 S.W. 72, 273 Mo. 353; Wilhite v. Wilhite, 224 S.W. 448, 284 Mo. 387; Walker v. Deppe, 141 S.W.2d 783, 346 Mo. 354. (2) That deed created in the grantees, husband and wife an estate by the entirety is established by a long line of decisions in this State, which decisions constitute a rule of property and will not be disturbed except for the most cogent reasons. 21 C.J.S., sec. 216, p. 396; Reed v. Ownby, 44 Mo. l.c. 206; Laclede Land & Imp. Co. v. Schneider, 177 S.W. l.c. 390. (3) The courts of this State have always favored estates by the entirety and have jealously guarded same, and for many years it was a debatable question in this State as to whether or not a husband and wife could hold an estate as tenants in common, regardless of express words in the deed to that effect. Peters v. Schachner, 312 Mo. l.c. 617, 280 S.W. l.c. 426; Russell v. Russell, 122 Mo. l.c. 237, 26 S.W. 677; Wilson v. Frost, 186 Mo. l.c. 320, 85 S.W. 375. (4) The rule of substitution applied in the case of Walker v. Deppe, supra, will not be applied where grantees are husband and wife, the decisions in such case being ruled under the common law. Walker v. Deppe, 141 S.W.2d l.c. 785, 346 Mo. 354. (5) The court probably admitted oral testimony of declarations made by C. P. Roberson before and after the delivery of the deed in question because such evidence explains the operative clauses in the deed being as they are. Baptiste Tent & Awning Co. v. Uhri, 129 S.W.2d 9; 22 C.J. 1173; Proctor v. Home Trust Co., 284 S.W. 156, 221 Mo.App. 577. (6) Even if the admission of such testimony was error, the trial being before the court without a jury, such error is not reversible error. There is ample evidence in the record to sustain the court's findings. Kleiman v. Geiselman, 21 S.W. 796, 111 Mo. 437; Shaffer v. Herte, 90 S.W. 131, 191 Mo. 377; Katz v. Dreyfoos, 26 S.W.2d 999; Young v. Hudson, 12 S.W. 632, 99 Mo. 102; Loumeier v. Gehner, 19 S.W. 82, 110 Mo. 122; Crook v. Tull, 20 S.W. 8, 111 Mo. 283; Green v. Ditsch, 44 S.W. 799, 143 Mo. 1; Jones v. Elkins, 45 S.W. 261, 143 Mo. 647; Joseph S. Baum Mercantile Co. v. Levin, 174 S.W. 442, 189 Mo.App. 237. (7) The contract was properly admitted in evidence because it explained the operative clauses in the deed being as they are, and if incompetent, its admission is not reversible error. Baptiste Tent & Awning Co. v. Uhri, 129 S.W.2d 9; 22 C.J. 1173; Proctor v. Home Trust Co., 284 S.W. 156, 221 Mo.App. 577; Kleiman v. Geiselman, 21 S.W. 796, 111 Mo. 437; Shaffer v. Herte, 90 S.W. 131, 191 Mo. 377; Katz v. Dreyfoos, 26 S.W.2d 999; Young v. Hudson, 12 S.W. 632, 99 Mo. 102; Loumeier v. Gehner, 19 S.W. 82, 110 Mo. 122; Crook v. Tull, 20 S.W. 8, 111 Mo. 283; Green v. Ditsch, 44 S.W. 799, 143 Mo. 1; Jones v. Elkins, 45 S.W. 261, 143 Mo. 647; Joseph S. Baum Mercantile Co. v. Levin, 174 S.W. 442, 189 Mo.App. 237. (8) The testimony offered by appellants that Guy Whitman, an attorney at law, wrote the deed in accordance with Mrs. Roberson's instructions after reading the contract offered in evidence by respondents waived all objections theretofore made to the testimony of the witnesses Whitmer, Marshall and Kallenberger, and to the competency of said contract being offered by respondents. Ramsey v. Parks, 179 S.W.2d 481.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

[354 Mo. 304] Petition in two counts, in ejectment and to partition land in Carroll County. By the count in ejectment plaintiffs sought to recover possession of a one-half interest in the land. An answer was filed by certain defendants in which it was prayed that the court enter a decree declaring them to be the sole owners. The cause was submitted in the trial court upon the count in ejectment, the trial of the issues of fact by the jury having been waived. At the close of all the evidence, the trial court granted defendants' request for a declaration of law that "under the law and the evidence the findings and judgment must be for defendants." Upon rendering its judgment, the court found "that plaintiffs

Page 296

are not the owners of, and are not entitled to the possession of, any part of or interest in and to," the land. The trial court also sustained a motion to dismiss the count in partition. Plaintiffs have appealed. Title to real estate is involved, and this court has...

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29 practice notes
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 12 Marzo 1951
    ...v. Jersey Realty & Inv. Co., 352 Mo. 1122, 180 S.W.2d 49; Hastings v. Hudson, 359 Mo. 912, 224 S.W.2d 945; Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295; Sec. 114 (d), Civil Code of Missouri. (2) Assuming that it was otherwise valid, the second extension agreement, which purported to......
  • 601 S.W.2d 14 (Mo. 1980), 61858, Nelson v. Hotchkiss
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 15 Julio 1980
    ...of general interest and importance, and that the decision of the court of appeals conflicts with our decision in Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450 (1945). On January 15, 1980, we ordered the case transferred to this Court. I In Missouri, as at common law, a co......
  • 386 P.2d 103 (Wyo. 1963), 3154, Witzel v. Witzel
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • 29 Octubre 1963
    ...tenants rather than as tenants by the entireties, they take as joint tenants, just as other distinct persons do. See Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450, where that conclusion is reached. Appellees' criticism that this case is distinguishable from the present on......
  • 199 S.W.2d 881 (Mo.App. 1947), Jordan v. Parsons
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • 18 Febrero 1947
    ...location since 1877. (a) This case was tried without jury and the Appellate Court must review all of the evidence. Davidson v. Eubanks, 189 S.W.2d 295; A. J. Meyer & Co. v. Schulte, 189 S.W.2d 183; Harlan v. Blume, 190 S.W.2d 273. (b) Respondent has the burden to show by convincing evid......
  • Request a trial to view additional results
29 cases
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 12 Marzo 1951
    ...v. Jersey Realty & Inv. Co., 352 Mo. 1122, 180 S.W.2d 49; Hastings v. Hudson, 359 Mo. 912, 224 S.W.2d 945; Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295; Sec. 114 (d), Civil Code of Missouri. (2) Assuming that it was otherwise valid, the second extension agreement, which purported to......
  • 601 S.W.2d 14 (Mo. 1980), 61858, Nelson v. Hotchkiss
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 15 Julio 1980
    ...of general interest and importance, and that the decision of the court of appeals conflicts with our decision in Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450 (1945). On January 15, 1980, we ordered the case transferred to this Court. I In Missouri, as at common law, a co......
  • 386 P.2d 103 (Wyo. 1963), 3154, Witzel v. Witzel
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • 29 Octubre 1963
    ...tenants rather than as tenants by the entireties, they take as joint tenants, just as other distinct persons do. See Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450, where that conclusion is reached. Appellees' criticism that this case is distinguishable from the present on......
  • 199 S.W.2d 881 (Mo.App. 1947), Jordan v. Parsons
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • 18 Febrero 1947
    ...location since 1877. (a) This case was tried without jury and the Appellate Court must review all of the evidence. Davidson v. Eubanks, 189 S.W.2d 295; A. J. Meyer & Co. v. Schulte, 189 S.W.2d 183; Harlan v. Blume, 190 S.W.2d 273. (b) Respondent has the burden to show by convincing evid......
  • Request a trial to view additional results