Rines v. Mansfield
Citation | 9 S.W. 798,96 Mo. 394 |
Parties | Rines v. Mansfield et al., Appellants |
Decision Date | 26 November 1888 |
Court | United States State Supreme Court of Missouri |
Appeal from Audrain Circuit Court. -- Hon. Elijah Robinson, Judge.
Affirmed.
Ira Hall for appellants.
(1) The deed from Pearson, introduced by plaintiff as part of his chain of title, showed title in Elizabeth Mansfield and her children, if not as joint tenants, then as tenants in common and to her for her life only. Hall v. Stevens, 65 Mo. 670; Kinney v. Mathews, 69 Mo. 520; Smith v Shell, 82 Mo. 215. (2) A deed is to be given effect according to the intent apparent from the whole instrument. The intent governs. And that is clear. The grant and warranty are to Elizabeth Mansfield and her children. Gibson v Bogy, 28 Mo. 478; Jennings v. Brizadine, 44 Mo. 332; Long v. Wagoner, 47 Mo. 177; Jamison v. Fopiano, 48 Mo. 194. The habendum, being to her and "her heirs," instead of "her children," was evidently an inadvertence of the scrivener. But the habendum is no essential part of the deed, and may be rejected if repugnant to other parts. Major v. Buckley, 51 Mo. 227. (3) Nothing was conveyed by the deed of trust. R. C. Mansfield was alone the grantor therein. Elizabeth Mansfield should have been a party in the granting clause in order to convey any interest in the land. R. S., sec. 3295; Silvey v. Summer, 61 Mo. 253; Whitely v. Stewart, 63 Mo. 360. (4) Were Mrs. Mansfield a party to the grant in the deed of trust, the note described therein is void as to her, and the agreement in said deed of trust, that a sale might be had on default, is executory, and also void as to her, and the attempted foreclosure by sale is void, and plaintiff got nothing by his trustee's deed. Foreclosure could only be had by suit in equity, if at all. Bauer v. Bauer, 49 Mo. 61; Jones on Mor. [2 Ed.] sec. 110; Pemberton v. Johnson, 46 Mo. 342; Barker v. Circle, 60 Mo. 258. (5) The lien of the deed of trust, if any, was created by it, and any rights acquired by plaintiff under it, were barred by the statute of limitations, more than ten years having elapsed from the maturity of the note to the bringing of this suit. Bush v. White, 85 Mo. 340. (6) The note being void as to her (Elizabeth M.), there could be no privity or agency betwixt her and the other parties to it, in making of payments. Smith's Adm'r v. Irwin, 37 Mo. 174; Zoll v. Carnahan, 83 Mo. 43; Bartlett v. O'Donahue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570.
George Robertson for respondent.
(1) The deed of trust made by the defendants R. C. and Elizabeth Mansfield to Duncan, trustee, was valid and operated to convey the wife's interest as well as the husband's. Hagerman v. Sutton, 91 Mo. 519; Thornton v. Bank, 71 Mo. 221; Morrison v. McKee, 11 Mo.App. 594. (2) "The courts will look at the whole instrument and if it is apparent that the language and terms made use of were not used according to their true definitions, that meaning will be given them that was intended." Bishop on Cont. sec. 404. And "children," has been rendered "heirs" contrary to the legal sense. Bishop on Cont. supra, and authorities cited. The courts will not construe clauses in the order in which they appear in a conveyance or contract. As they are all simultaneously executed they will all be construed together and as one act. Bishop on Cont. sec. 389. (3) While it is said in Major v. Buckley, 51 Mo. 227, that the habendum clause must give way when it is repugnant to other controlling clauses in a deed, that is on account of such repugnancy and nothing else, in Green v. Sutton, 50 Mo. 186, it is held that when there be inconsistent provisions then the words of the habendum will have a controlling significance. This is in harmony with the doctrine that, when possible, every word and clause should have assigned to it some meaning. Bishop on Cont. sec. 384, et seq. (4) Mrs. Elizabeth Mansfield was a party in the granting clause of the deed of trust. It recites, "Robert C. Mansfield and Elizabeth Mansfield, his wife, * * * party of the first part," and consequently a party to the conveyance. Hagerman v. Sutton, supra. (5) The evidence as to the rents and profits not having been preserved, this court will assume that the judgment thereon was warranted. State v. Brown, 75 Mo. 317; Dalby v. Snuffer, 57 Mo. 294.
This is a petition in ejectment, filed August 27, 1885, to recover possession of the southeast quarter of the southeast quarter of section 19, township 51, range 8, in Audrain county. The answer admits that Elizabeth Mansfield is in possession of the land, and denies all other allegations of the petition. On the trial, the suit was dismissed as to Edward Mansfield, and judgment rendered in favor of plaintiff as against remaining defendants for possession, one dollar damages and $ 8.25 for monthly rents and profits. From this judgment the defendants have appealed.
On the trial, in support of his title, plaintiff put in evidence a certified copy of the United States land entries, showing that Richmond Pearson entered the land in question. Also the following deed from said Pearson and wife, conveying said land, viz.:
Plaintiff also put in evidence a deed of trust, dated the fifth of January, 1870, executed by Robert C. Mansfield and Elizabeth Mansfield, as party of the first part, conveying the land in question to M. Y. Duncan, party of the second part, as trustee of a certain note, given to S. M. Edwards by said R C. Mansfield and Elizabeth Mansfield, and William C. Mansfield, for the sum of five hundred dollars, payable in one year, with ten per cent. interest. It is provided in said deed, that if default be made in the payment of said note, said Duncan might sell the...
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