Rines v. Mansfield

Citation9 S.W. 798,96 Mo. 394
PartiesRines v. Mansfield et al., Appellants
Decision Date26 November 1888
CourtUnited 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.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

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.: "This indenture, made this twenty-fifth day of January, in the year of our Lord one thousand eight hundred and fifty-two, between Richmond Pearson and Elizabeth A., his wife, of the county of Audrain and state of Missouri, of the one part, and Elizabeth S. Mansfield, of the county and state aforesaid, of the other part, witnesseth: That the said Richmond Pearson and Elizabeth A., his wife, for and in consideration of the sum of sixty dollars to them in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey and confirm unto the said Elizabeth S. Mansfield, his children and assigns forever, all that tract or parcel of land situated, and being in the county of Audrain, in the state of Missouri, known as the southeast quarter of the southeast quarter of section number 19, township 51, range number 8, west, together with all and singular the appurtenances thereunto belonging or in any wise appertaining, to have and to hold the above described premises unto the said Elizabeth S. Mansfield, his heirs and assigns forever. And the said Richmond Pearson and Elizabeth, his wife, the aforesaid premises unto the said Elizabeth S. Mansfield, his children and assigns, against the claim or claims of all and every person whomsoever, do and will warrant and forever defend, by these presents."

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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