Keller v. Keller

• Decision Date: 21 March 1936
• Docket Number: 33076
• Citation: 92 S.W.2d 157,338 Mo. 731
• Parties: William Keller, Mathilde Eggimann, Henry M. Keller, Fred A. Keller, Arthur O. Keller, Christine Hager, Edwin A. Keller, Helena Rau, Ella Miller, Julius Otto Keller, Arnold G. Keller, Magdalena Schrader, Anna Blattner, Mary Schwab, Owen W. Crites, A minor, Mildered Marie Crites, a Minor, and Virginia Dott Crites, a Minor, by W. B. Crites, Their Next Friend, Appellants, v. Robert Keller, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 157

338 Mo. 731

William Keller, Mathilde Eggimann, Henry M. Keller, Fred A. Keller, Arthur O. Keller, Christine Hager, Edwin A. Keller, Helena Rau, Ella Miller, Julius Otto Keller, Arnold G. Keller, Magdalena Schrader, Anna Blattner, Mary Schwab, Owen W. Crites, A minor, Mildered Marie Crites, a Minor, and Virginia Dott Crites, a Minor, by W. B. Crites, Their Next Friend, Appellants, v. Robert Keller, Appellant

No. 33076

Supreme Court of Missouri

March 21, 1936

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Reversed and remanded (with directions to make amends of pleading and correct errors noted.)

Foristel Mudd, Blair & Habenicht and Rush H. Limbaugh for William Keller et al.

(1) The court correctly construed the deed of John G. Keller to George J. Keller as conveying to the grantee therein, George J. Keller, a base or determinable fee, determinable upon his death without children. Utter v. Sidman, 170 Mo 294; Garrett v. Wiltse, 252 Mo. 708; Welsh v. Finley, 281 Mo. 684; Long v. Trust Co., 332 Mo. 288. (2) On the proper construction of the deed of John G. Keller to George J. Keller and since the defendant admits the adverse possession alleged in the petition, plaintiffs Edwin A. Keller, Helena Rau and Ella K. Miller were entitled to recover ejectment so as to be let in as ousted cotenants, and the court erred in denying them that relief. R. S. 1929, sec. 1372; Jordan v. Surghnor, 107 Mo. 520; Falconer v. Roberts, 88 Mo. 574; 62 C. J., p. 513, sec. 167. (3) The fact that some of the plaintiffs -- those who joined in the deeds put in evidence as Defendant's Exhibits 1 and 2 -- were adjudged to have no right to maintain ejectment is no obstacle to the right to ejectment of those cotenants who did not join in said deeds. R. S. 1929, sec. 1374.

Dearmont, Spradling & Dalton for Robert Keller.

(1) All persons interested in the real estate must be made parties to a partition suit so that the entire interest will pass to the purchaser and future controversies will be avoided, and a failure to make a party interested a party to the suit, will require that the cause be reversed and remanded. Veronica Keller, a devisee under the will of George Jacob Keller, deceased, and an adverse claimant in possession, is not a party to this proceeding. Sec. 1550, R. S. 1929; Carson v. Hecke, 222 S.W. 853, 282 Mo. 580; Johnson v. Johnson, 170 Mo. 56; Hiles v. Rule, 121 Mo. 256; Lilly v. Menke, 126 Mo. 214; Holloway v. Holloway, 97 Mo. 628; Dameron v. Jameson, 71 Mo. 99; 47 C. J. 302; 30 Cyc. 202. (2) Where the real estate sought to be partitioned is in the adverse possession of the defendant or of some other person, it is error for the trial court to order a sale of the property in partition. Hutson v. Hutson, 139 Mo. 235; Barnard v. Keathley, 230 Mo. 223; McQuitty v. McQuitty, 61 S.W.2d 342; Waddell v. Chatman, 238 S.W. 481, 483. (3) "The intention of the defendant is to be gathered from the entire instrument and effect must be given to all of its words and clauses, if that be possible, in reason, so that each is made operative and effective for some purpose." Kane v. Roath, 276 S.W. 40; Owens v. Trial, 258 S.W. 701; Eckle v. Ryland, 256 Mo. 441; 18 C. J. 257, sec. 205. (a) Where the clauses in a deed cannot be brought into harmony so that all can be given effect, then said clauses are repugnant. Kane v. Roath, 276 S.W. 40; 18 C. J. 331, sec. 327. (b) "But if there be a doubt as to the intention of the parties to the deed, the habendum clause which performs the office of defining, qualifying or controlling the granting clause when not in conflict with it, is an important factor in arriving at such intent." Tennison v. Walker, 190 S.W. 15; Linville v. Greer, 165 Mo. 397; Kane v. Roath, 276 S.W. 41. (c) Where the provisions of a deed are repugnant and the intention uncertain of the grantees, the court will look to the habendum clause in determing the grantee's intention and use of the word "assigns" will be considered to show an intent by the grantor to give the grantee the full power of disposition. Green v. Sutton, 50 Mo. 192; Tennison v. Walker, 190 S.W. 12; Welch v. Harvey, 219 S.W. 898; Wilson v. Cockrel, 8 Mo. 1; 3 Thompson on Real Property, sec. 2011, p. 99. (d) A deed must be construed most strongly against the grantor. Linville v. Greer, 165 Mo. 397; Cornwell v. Wulff, 148 Mo. 553; 18 C. J. 263, sec. 219. (e) A provision in a deed vesting fee simple title cannot be cut down by a repugnant provision later, unless equally clear, and all clauses can be harmonized. Triplett v. Triplett, 60 S.W.2d 16. (f) The fact that a substantial consideration is recited and the receipt thereof acknowledged must be considered in construing a deed, the recital of consideration being evidence of a sale. In the absence of proof it will be conclusively presumed that the consideration was paid. Woods v. Kice, 103 Mo. 335; Tennison v. Walker, 190 S.W. 12. (g) A clause in restraint of alienation in a deed containing apt words to pass an estate in fee will be rejected and the estate held to pass in absolute fee simple to the grantee. Kessener v. Philips, 189 Mo. 528; McDowell v. Brown, 21 Mo. 60; Cornwell v. Wulff, 148 Mo. 554; 3 Thompson on Real Property, sec. 2007-9, p. 95, sec. 2576, p. 716; 40 Cyc. 1713. (h) Where the terms of a deed expressly recognize that the grantee may sell or dispose of the real estate under certain conditions, as by will, and pass a fee simple title, the courts hold that such instrument passes the fee to the grantee in the deed. Cook v. Couch, 100 Mo. 35; Green v. Sutton, 50 Mo. 192. (4) George Jacob Keller, grantee, being dead, the grantors in the deed were not competent to testify as to failure of consideration or as to circumstances attending the delivery of the deed. Sec. 1723, R. S. 1929; Cloves v. Cloves, 239 S.W. 147. (a) Plaintiffs were estopped to question the execution of the quitclaim deed which had been executed, delivered and recorded for more than forty-two years prior to the date of the trial. Secs. 1681, 3040, R. S. 1929.

OPINION

Bohling, C.

Plaintiffs sue in ejectment and for partition of one hundred and twenty-seven acres of real estate situate in Cape Girardeau County, Missouri. The case is here on cross-appeals after unsuccessful motions of the parties plaintiffs and defendant for new trial and in arrest of judgment.

John G. Keller owned the real estate in fee, and, with his wife, on February 23, 1887, by warranty deed in usual form recorded March 15, 1887, in book 18 at page 157, Recorder's office of said county, conveyed said real estate to his son George J. Keller. Said deed (omitting the conclusion) reads:

"This Indenture, made on the twenty third day of February, A. D., One Thousand Eight Hundred and Eighty Seven by and between John George Keller and Augusta Keller, husband and wife, of the County of Cape Girardeau in the State of Missouri, party of the first part, and George J. Keller of the County of Cape Girardeau in the State of Missouri, party of the second part:

"Witnesseth, that the said party of the first part in consideration of the sum of three thousand dollars; to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm, unto the said party of the second part, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Cape Girardeau and State of Missouri, to-wit:

[Here follows a description of the real estate] "and it is hereby expressly agreed to and understood by the parties herein named that in case that the said George J. Keller should die without children the above described real estate shall revert to his father and his heirs and that the said George J. Keller shall not sell or dispose of said real estate without first obtaining the consent of the party of the first part herein named. (Italics ours.)

"To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging, or in any wise appertaining, unto the said party of the second part, and unto his heirs and assigns, forever; the said party of the first part hereby covenanting that they are lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that they have good right to convey the same; that the said premises are free and clear of any incumbrance done or suffered by them or those under whom they claim; and that they will warrant and defend the title to the said premises unto the said party of the second part, and unto his heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever."

John G Keller, grantor, died August 6, 1888, leaving said George J. Keller, grantee, John H. Keller, Louis T. Keller, Julius Otto Keller, August W. Keller, Mrs. Anna Blattner and Mrs. Mary Schwab, his children, surviving as his sole and only heirs. On November 20, 1888, with the exception of said Louis T. Keller, all of said children (the wives of those married joining) of said John G. Keller, by quitclaim deed, in usual form, recorded June 2, 1890, in book 23, at pages 29 and 30, in the recorder's office of Cape Girardeau County, conveyed said real estate to said George J. Keller, for the recited consideration of "one dollar and the love and affection we bear our brother." And on May 20, 1890, all of said children (their wives joining), with the exception of August W. Keller (who joined in said quitclaim deed) and said Louis T. Keller, by warranty deed, in usual form but not acknowledged or recorded, conveyed said real estate to said George J. Keller for the recited consideration of "Ten Dollars." In each of said deeds there was...