Adams v. Cary

• Decision Date: 30 December 1920
• Docket Number: No. 21499.,21499.
• Citation: 226 S.W. 833
• Parties: ADAMS et al. v. CARY.
• Court: Missouri Supreme Court

226 S.W. 833

ADAMS et al. v. CARY.

No. 21499.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Appeal from Circuit Court, Dunklin County: W. S. C. Walker, Judge.

Suit to quiet, title by J. H. Adams and others against W. L. Cary. From judgment for defendant, plaintiffs appeal. Affirmed.

W. F. Rhew, of Cardwell, and McKay & Jones, of Kennett, for appellants.

Hugh B. Pankey, James A. Bradley, and Orville Zimmerman, all of Kennett, for respondent.

SMALL, C. I.

Appeal from the circuit court of Dunklin county. Suit to quiet title. Petition in statutory form. Answer denies plaintiffs have any title, and alleges "that feesimple title to the lands sued for in plaintiffs' petition is in defendant, and that plaintiffs have no title or interest therein." The answer prays the court to hear the testimony and to decree that the fee-simple title is in defendant, and that plaintiffs have no title, and that defendant have costs.

The only question on the merits is whether the following deed vests a fee-simple title in Mollie Adams, or a fee tail, which by our statute is converted into a life estate in her, with remainder in fee to her children or descendants. The court below held that it conveyed a fee simple, and rendered judgment for defendant, and plaintiffs appealed.

The deed referred to is in words and figures as follows:

"This indenture, made on the 20th day of June, A. D. one thousand eight hundred ninety-two, by and between J. H. Bolin, of Dunklin county, Missouri, party of the first part, and Mollie Adams and her bodily heirs, of the county of Dunklin, 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 one dollar and other land to him 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, her heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Dunklin and state of Missouri, to wit: [Property described.]

"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 James H. Bolin hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the said premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear of any incumbrance done or suffered by him or those under whom he claims, and the.% he 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.

"In witness whereof, the said party of the first part has hereunto set his hand the day and year first above written.

                "J. H. Bolin."
                

Which deed was duly acknowledged June 21, 1892, before J. B. Cook, J. P. The words and letters and figures, which we have italicized, were in writing, and the remainder of the deed was a printed form.

The evidence showed that J. H. Bolin,' the grantor, and Mollie Adams, the grantee, in said deed, were brother and sister, and that they owned the land described in said deed as tenants in common; it having been set off to them jointly in a partition suit between the heirs of their grandfather, Henry J. Bailey, from whom they inherited it. They also owned another tract as tenants in common, which they inherited from their said grandfather, and reciprocal deeds were made and exchanged to partition said two tracts between them.

The grantor in the above deed, J. H. Bolin, testified for the plaintiffs, in substance, as follows:

I conveyed this land to my sister Mollie Adams; the consideration recited is one dollar and other lands. I traded places with my sister. I had a place and I took the home place and Mollie took the place on the river that we got from our grandfather, Henry J. Bailey. Mollie and I were dividing our estate in this transaction. I don't remember whether there was any money passed or not; the deed recites one dollar and other land. We were trading land. I was deeding her the land described in this deed, and she deeded me other land in exchange for the land I deeded her. We were dividing our estate. I was deeding her the land described in this deed for her interest in the land which I got.

At the close of all the testimony of both parties, as shown by the bill of exceptions, the following took place:

"Mr. McKay: Plaintiff takes voluntary nonsuit.

"Mr. Zimmerman: We don't think the plaintiffs can take a voluntary nonsuit. We ask the court to decree title in defendant."

The court made no direct ruling on the question of plaintiffs taking a voluntary nonsuit, but at the close of the testimony, and after argument of counsel, rendered judgment that the fee-simple title was in defendant, and that plaintiffs had no interest nor title in the property sued for. No instructions were asked or given.

The plaintiffs duly filed a motion for new trial, but did not therein refer to the court's refusal to grant them a voluntary nonsuit. The motion for new trial being overruled, plaintiffs appealed to this court.

II. Inasmuch as defendant in his answer asserted title in fee in himself, and asked the court to hear the evidence and declare that he, and not the plaintiffs, was the owner of the property, the plaintiffs could not take a nonsuit and deprive the defendant of the right to have an adjudication of title in his favor, if he was entitled to it. Section 2535, R. S. 1909; State ex rel. v. McQuillin, 246 Mo. 517, 152 S. W. 347; Graves v. Chapman, 248 Mo. 83, 154 S. W. 61; Craig v. Bright, 213 S. W. 845.

The lower court, therefore, properly proceeded to trial and judgment on defendant's claim after plaintiffs announced they would take a nonsuit.

III. We think the lower court was also right in construing said deed to convey a feesimple title to the grantee, Mollie Adams. It is settled law of this state...