Godman v. Simmons

Decision Date22 December 1892
Citation113 Mo. 122,20 S.W. 972
PartiesGODMAN et al. v. SIMMONS et al.
CourtMissouri Supreme Court

Appeal from circuit court, Saline county; RICHARD FIELD, Judge.

Ejectment by William C. Godman and others against Henry C. Simmons and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. P. Strother, for appellants. Draffen & Williams and Saml. Boyd, for respondents.

BRACE, J.

This is an action in ejectment, in which the plaintiffs seek to recover an undivided three fourths of a tract of land in Saline county. The answer admitted possession, and denied all the other material allegations of the petition. The case was tried before the court without a jury, the judgment was for the defendants, and the plaintiffs appeal.

Elizabeth O'Bannon is the common source of title. On the 26th day of October, 1868, she and her husband duly executed, acknowledged, and delivered a warranty deed conveying the premises to Mary R. Godman "for and during her natural life, and with remainder to the heirs of her body. * * * To have and to hold the premises hereby conveyed with all the rights, privileges, and appurtenances thereto belonging, or in any wise appertaining, unto the said Mary R. Godman during her natural life, and then to the heirs of her body and assigns forever." The plaintiffs, William C. Godman, Josephine C. Way, and Mattie B. Naylor, are the children of the said Mary R. Godman, who died in March, 1888. Besides the plaintiffs, the said Mary R. Godman had three other children, — Burton L. Godman, who died in 1876; Mollie, who intermarried with one Emmerson, and afterwards died in February, 1880, leaving one child, Edward, surviving her; and Beal Godman, who died in September, 1888, without lineal descendants. The plaintiffs, after showing these facts, rested, and the defendants, upon their part, introduced in evidence a deed of trust executed by Melvin Godman and the said Mary R. Godman, his wife, the said William C. Godman and wife, John B. Way and the said Josephine C. Way, his wife, and the said Burton L. Godman and Mollie Godman, to Samuel Boyd, trustee, to secure the payment of a promissory note to one George Farlow for $1,300, due one year after date, with power of sale upon default in payment of the debt at maturity. This deed was dated April 4, 1876. The defendants also offered the note, secured by said deed of trust, which is signed by all of the grantors therein. The defendants next offered a deed from Samuel Boyd, trustee, to Henry Emmerson, dated October 10, 1877. This deed was made in pursuance of a sale under the power contained in the foregoing deed of trust. The defendants next offered a deed dated October 19, 1878, containing covenants of general warranty, from Henry Emmerson and wife to defendant Henry C. Simmons, and then a deed dated January 27, 1880, from Henry C. Simmons and wife to Melvin Godman. Next a deed of trust of same date from Melvin Godman and wife to W. R. Gist, trustee, to secure an indebtedness due to said H. C. Simmons, and a deed from Gist, trustee, under the power of sale contained in said deed of trust, to Henry C. Simmons, dated September 1, 1886. The defendants next offered a deed dated April 3, 1880, from Beal Godman to Melvin Godman, and deed dated May 23, 1881, from Mattie B. Naylor and husband, conveying her undivided interest in the land to Melvin Godman. The plaintiffs objected to the introduction of each of the foregoing deeds on the ground that same "was incompetent, irrelevant, and immaterial," and the objection in each instance was overruled by the court. They also asked declarations of law in effect excluding said deeds, and declaring that the plaintiffs had the title to the land sued for, which instructions or declarations of law the court refused to give, and plaintiffs excepted.

1. It is provided by the statute of this state that "when a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir, or heirs of the body, of such tenant for life, shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited to them." Rev. St. 1889, § 8838; Gen. St. 1865, p. 442, § 6. The deed of Elizabeth O'Bannon came before us for construction in the recent case of Emmerson v. Hughes, (Mo. Sup.) 19 S. W. Rep. 979, and we there held "that the statute just quoted converted the estate tail created by the deed at common law into a life estate in the first taker, with a contingent remainder in fee simple in favor of those persons who should answer the description of heirs of her body;" and as no one can be the heir of a living person, it could not be told who the heirs of the body of Mary R. Godman would be until her death, when the contingent remainder in fee under the deed would vest; and that Mrs. Emmerson, not being alive at that time, took no estate under the deed of Mrs. O'Bannon, and conveyed none by the deed of trust to Boyd, made in her lifetime before the death of...

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