Donaldson v. Donaldson

• Citation: 278 S.W. 686,311 Mo. 208
• Decision Date: 22 December 1925
• Docket Number: 24954
• Parties: LYDA B. DONALDSON and LUCILE E. DONALDSON v. ROBERT T. DONALDSON and Z. R. ICHE, Appellants
• Court: United States State Supreme Court of Missouri

278 S.W. 686

311 Mo. 208

LYDA B. DONALDSON and LUCILE E. DONALDSON v. ROBERT T. DONALDSON and Z. R. ICHE, Appellants

No. 24954

Supreme Court of Missouri

December 22, 1925

Appeal from Shelby Circuit Court; Hon. V. L. Drain, Judge.

Reversed and remanded.

Harry J. Libby for appellant.

(1) The deed from James M. Donaldson to Robert T. Donaldson, dated October 12, 1885, created a life estate in said lands in Robert T. Donaldson, the son, and by express terms postponed the vesting of the fee until "the death of the second party" (Robert T. Donaldson). Said Robert T. Donaldson is yet living, the fee in remainder has not yet vested, and will not vest until his death. The fee was to vest on the happening of a contingency, and in the alternate. The contingency was that children of Robert T. Donaldson should be living at the date of his death. The alternative was that it should vest, one-third in the widow of said Robert T Donaldson, and the remaining two-thirds should revert to his parents, the grantors. Eckle v. Ryland, 256 Mo. 424; Buxton v. Kroeger, 219 Mo. 235. (2) Since the deed by express terms postponed vesting of the fee until the death of Robert T. Donaldson, who is yet living, and was then to vest only in such of his children as were then alive, the remainder was a contingent and not a vested one. And since Enoch E. Donaldson, died September 24, 1921, during the life of the life tenant said Enoch E. Donaldson took no part of the fee under the deed of James M. Donaldson and plaintiffs inherited none from him. The only title appellants have is that obtained and held by them under deeds from the other children of Robert T. Donaldson. And that is a mere expectancy that may and may not vest in defendants, depending on their being alive at the date of death of said Robert T Donaldson. If they, or any of them be alive at that time they will take, not by descent from Robert T. Donaldson, but as purchasers under the deed of James M. Donaldson, who gave them the estate in remainder by way of substitution for said Robert T. Donaldson. Dickerson v. Dickerson, 211 Mo 496. (3) The circuit court erred in holding void the clause in the deed from Robert T. Donaldson to his children. By the findings the learned circuit judge held by this clause the grantor undertook both to convey and reserve the same thing and that-this clause conflicted with the granting clause, and should be most strongly construed against the grantor and was therefore void for repugnancy. The ancient rule that a grantor in a deed must express his intention in set and technical language, and in proper place, and in the right order and clause of the deed, and that in event of repugnancy the first words were to govern and all else be rejected and adjudged void for repugnancy, irrespective of the intention of the grantor, has long since been abandoned in Missouri, and in lieu thereof has come the modern doctrine that the cardinal rule to be observed in construing a deed is to ascertain the intention of the grantor and enforce it. Such intention may be expressed anywhere in the deed and in any words that will impart it, and courts will enforce it no matter in what part of the instrument it may be found. Utter v. Sidman, 170 Mo. 293; Williamson v. Brown, 195 Mo. 336; Buxton v. Kroeger, 219 Mo. 246; Eckle v. Rayland, 256 Mo. 424. (4) In case of repugnancy all parts of a deed should be made to harmonize if practicable upon a construction of the whole instrument. If both parts of a deed may well stand together they will be construed to have that effect rather than be held repugnant. That construction should be given which will develop consistency rather than inconsistency in its parts. McCullock v. Holmes, 111 Mo. 445; Chew v. Keller, 171 Mo. 215; Williamson v. Brown, 195 Mo. 313. (5) Enoch E. Donaldson, under whom respondents claim both by deed and by descent was one of the grantees in the deed (Plaintiffs' Exhibit 2), from Robert T. Donaldson to his children. His children accepted that deed and spread it of record and claimed, held and conveyed under it. The estate conveyed was by express terms of the deed subject to the support of the grantor Robert T. Donaldson. The words, "subject to" means subservient to, subordinate to, to control (Century Dictionary). As used in the clause of the deed here, they mean, charged with. Bredell v. Fair Grounds Co., 95 Mo.App. 686; Walker v. Goodsill, 54 Mo.App. 631. The estate conveyed was by express terms of the deed subject to and charged with the support of Robert T. Donaldson. It was perfectly lawful for the father thus to impose upon the estate conveyed a charge for his own support and the grantees therein and their grantees and heirs took the land burdened with that charge. Fuller v. Devolld, 144 Mo.App. 93; Westminster College v. Piersol, 161 Mo. 270; Tucker v. Tucker, 106 N.Y. 713; Martin v. Martin, 44 Kan. 295; Goudy v. Goudy, Wright (Oh.) 410; Goodplaster v. Leathers, 123 Ind. 121; Ringrove v. Ringrove, 170 Pa. St. 503; McClure v. Cook, 39 W.Va. 579; Rohn v. Odenwelder, 162 Pa. St. 346; De Watts Appeal, 20 Pa. St. 236; Bonebrake v. Summers, 193 Pa. St. 22. (6) The court erred in admitting the sheriffs' deed from Abram Kemper to T. A. Gorden, in evidence, for the reason that said sheriff's deed was void, for the following reasons: (a) No judgment on which it was based was introduced in evidence. Justice courts are courts of inferior jurisdiction and the same favorable presumptions of regularity and validity do not obtain as to them as in the case of judgments of courts of record. One claiming title or resting a defense on a sheriff's sale must show a valid judgment as well as an execution. Morrison v. Dent, 1 Mo. 246; Wernecke v. Wood, 58 Mo. 352; Orchard Co. v. Gilmore, 159 Mo.App. 219. (b) By express terms of Sec. 6288, R. S. 1889, the applicable statutory law since the transaction occurred in 1898, an execution was required to issue out of the justice court and a return of nulla bona made, before a transcript could be legally filed thereon and a sale of real estate without observing this requirement passed no title. Lindeman v. Edson, 25 Mo. 105; Burk v. Miller, 46 Mo. 258; Sec. 6288, R. S. 1889. Neither T. A. Gorden, the judgment creditor, nor Lyda B. Donaldson his grantee were innocent purchasers, since both had actual knowledge and the deed of Robert T. Donaldson being of record in Shelby County, both had constructive knowledge thereof. (c) Said sheriff's deed was void for the further reason that the life estate of said Robert T. Donaldson in said lands constituted the homestead of said Robert T. Donaldson. Kendall v. Powers, 96 Mo. 142. And his homestead attached at the date of the deed of the ancestor James M. Donaldson, where as here, it was followed by occupancy by the grantee a short time thereafter. No commissioners were appointed to set off the homestead and the proceeding was wholly void. Vogler v. Montgomery, 54 Mo. 577; Harrington v. Utterback, 57 Mo. 519; Holland v. Kreider, 86 Mo. 59; Biffle v. Pullman, 114 Mo. 50; Creech v. Childers, 156 Mo. 338; White v. Spencer, 217 Mo. 242; Childers v. Peckenpaugh, 219 Mo. 455; Pocoke v. Peterson, 256 Mo. 520.

W. L. Hamrick and Ben Franklin & Son for respondents.

(1) Under the deed of James M. Donaldson and Julyan A. Donaldson his wife, to Robert T. Donaldson, dated October 12, 1885, Robert T. Donaldson took a life estate in the land in question and his children took a vested remainder, which either or both grantor or grantee could sell or convey. Dunbar v. Sims, 222 S.W. 838; Huntington Real Estate Co. v. Megaree, 217 S.W. 301; Green v. Irvin, 274 S.W. 682. (a) The expression "to have and to hold the same unto the said second party till his death, at the death of the second party the above-described real estate shall vest in fee in his children, and if he has no children living, then one-third of the real estate is to go to his widow and the rest return back to his parents," has frequently been before the Supreme Court for interpretation and uniformly held to relate to the time when the devisee shall have possession and has nothing to do with the vesting of the estate. Jones v. Waters, 17 Mo. 587; Waddell v. Waddell, 99 Mo. 338; Chew v. Keller, 100 Mo. 368; Burns v. France, 131 Mo. 647; Tindall v. Tindall, 167 Mo. 218; Heady v. Hollman, 251 Mo. 632; 2 Underhill, Law of Wills, 861; 2 Jarman on Wills (6 Ed.) 357; Warne v. Sorge, 258 Mo. 162. (b) The law favors vested estates and where there is doubt as to whether the remainder is vested or contingent, the courts will construe it as vested remainder. Dunbar v. Sims, 222 S.W. 838. (2) By the deed of Robert T. Donaldson and Ruth E. Donaldson, his wife to James S. Donaldson, William M. Donaldson, Lillie A. Donaldson, Enoch E. Donaldson and Lee O. Donaldson, a quitclaim deed dated October 2, 1897, being the land in question, whatever interest the said Robert T. Donaldson had in the land in question he conveyed; he had a right to sell it, and if he had a right to sell, the children had a right to buy it. These rights were exercised by both parties. The children owned the vested remainder and they bought the grantor's life estate, or whatever his interest may be termed. These several interests, as held by the trial judge, were vendible interests. Huntington Real Estate Co. v. Megaree, 217 S.W. 301. (a) This conveyance is for both a good and valuable consideration, to-wit "love and affection and $ 70" receipted for. The grantor was seeking to divest himself of any sort of interest he had therein, as appears from his language, to-wit: "Do justly, absolutely remise, release and forever quitclaim unto the parties of the second part their heirs and assigns forever all such right and title as we have or ought to have in the land in question. To...