Bean v. Kenmuir

• Decision Date: 31 October 1885
• Citation: 86 Mo. 666
• Parties: BEAN v. KENMUIR, Appellant.
• Court: Missouri Supreme Court

86 Mo. 666

BEAN

v.KENMUIR, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Lathrop & Smith and L. C. Slavens for appellant.

(1) The deed from Elizabeth S. Mettie to Neamie J. Talley conveyed a separate estate in fee to her, and that part of the habendum which attempted to limit a remainder to her husband, William W. Talley, on her death is void. 2 Greenleaf's Cruise, p. 651, secs. 75, 76; 2 Blackstone's Com. 298; Goodlittle v. Gibbs,2 B. & C. 707; German v. Orchard, 1 Salk. 346; Boddington v. Robinson, L. R. 10 Excheq. 270; 4 Kent's Com. (7 Ed.) 519; 2 Hilliard on Real Prop. (2 Ed.) p. 355, sec. 155; Coke on Littleton, 299 a; Shepherd's Touchstone, chap. 5, p. 102; 4 Comyn's Digest (4 Ed.) 168; 1 Stephen's Com. 450; Baldwin's case, 2 Rep. 23; Earl of Rutland's case, 8 Rep. 56; 3 Washburn on Real Prop. (4 Ed.) p. 436, sec. 60, *642. Where the words of an habendum in a deed are manifestly contradictory and repugnant to the words in the premises, the former are to be disregarded; but where part of the words in the habendum is contradictory to those in the premises, and part explanatory, the contradictory part only need be rejected. Doe d. Timmis v. Steele, 4 Ad. & Ell. 663; Deaver v. Rice, 3 Battle's Rep. (N. C.) 433; Hafner v. Irwin, 4 Dev. & B. 433; Porter v. Ingram, Harper (S. C.) 492; Bend v. Susquehanna, etc., Co., 6 Har. & J. 132; Ide v. Ide, 5 Mass. 500; Pynchon v. Stearns, 11 Met. 312, 316; Cong. Soc. of Halifax v. Stark, 34 Vt. 243; Ramsdell v. Ramsdell, 21 Me. 288; McLean v. Macdonald, 2 Barb. 534; Jackson v. Bull, 10 John. 19.

Scarritt & Scarritt for respondent.

RAY, J.

This is an action of ejectment for a lot in Ranson and Salley's addition to the City of Kansas. Emily J. Talley, W. W. Talley, and George W. Talley, were the owners of the west one-half of the northwest quarter of section four, township forty-nine, range thirty-three, of which the lot in question is part, on and prior to April 5, 1862. On this last mentioned date, W. W. Talley and wife, and George W. Talley, made a deed of quit-claim of all their interest in this property to Elizabeth S. Mettie, who was the mother of the wife of W. W. Talley. On July 20, of the same year, Elizabeth S. Mettie made a deed of her interest in the property to Neamie J. Talley, the wife of W. W. Talley, Neamie J. Talley, died--the exact date is not given. Her husband died some time after she died.

Plaintiff and defendant both claim title to two-thirds of the lot under the deed from Elizabeth S. Mettie to Neamie J. Talley, the plaintiff, by sundry mesne conveyances from the administrator and heir of William Wallace Talley. Neamie had no children, and the defendant claims title through her brothers and sisters. It is conceded, here, that plaintiff is entitled to recover as to one-third of the lot. The controversy, therefore, is as to the title to the remaining two-thirds of the lot, and depends wholly upon the proper construction of said deed from Elizabeth S. Mettie to Neamie J. Talley, which is as follows:

“This deed, made and entered into, this twentieth day of July, 1862, by and between Elizabeth S. Mettie, of the first part, and Neamie J. Talley, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of one dollar, to her in hand paid by said party of the second part, receipt of which is hereby acknowledged, and in further consideration of natural affection for said party of the second part, has granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said party of the second part, for her sole use and benefit, the following described real estate, situated in the county of Jackson, in the state of Missouri, to-wit: ‘All my interest in the west half of the northwest quarter of section number four, of township number forty-nine, in range number thirty-three, and all the town lots there as laid out as an addition to the City of Kansas, and described in the recorded plat, said interest being an undivided two-thirds of the same, to have and to hold the said tract, pieces, or parcels of land, together with all the rights, privileges and appurtenences thereto belonging, or in anywise appertaining to the said party of the second part, her heirs and assigns forever; and in case of the death of the said party of the second part, then said property, with all the rights and privileges therein, shall pass to the husband of Neamie, William W. Talley, said property in the meantime not to be subject to the debts of said W. W. Talley.

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

ELIZABETH S. METTIE. (SEAL).”

On the part of the plaintiff it is contended that Neamie J. Talley, by the deed, took a life estate only, with the remainder to W. W. Talley, her husband, and hence at her death the property went to him. On the other hand, the defendant insists that Neamie J. Talley took the fee-simple, by the deed in question, and at her death the title thereto descended to her brothers and sisters. The deed in question contains apt and sufficient words to convey a fee to the daughter, Neamie, and contains, also, words plainly expressing a limitation over to the husband, W. W. Talley, and the question is, how shall the instrument be construed so as to arrive at and render effective the intention of the party making the same. It is apparent that the actual consideration of the deed is one of love and affection, and we must find, if we can, the course the grantor designed and intended the title to take. It is familiar doctrine that the construction of deeds must be upon the entire instrument, with the view to give, if possible, meaning and effect to each and every part of it. The clause in the deed in question, in which, upon the death of the daughter, Neamie, the property is to pass to her husband, and declaring that, in the meantime, it shall not be subject to the husband's debts, is manifestly a prominent feature in the instrument. So far as it alone is expressive of the grantor's intention, its fair and unstrained import is to convey the property to Neamie J. Talley, for her sole use and benefit during her life, with remainder to her said husband, W. W. Talley. It indicates clearly that, during her life, the daughter is to have the control and use of the property, without interference by the husband, or husband's creditors, and it further indicates with equal clearness, the grant of a remainder to the husband.

Now, if the intention of the grantor was to convey an estate in fee to the daughter, why was such a clause, with such a provision, inserted in the instrument? It was unnecessary, and worse than idle, for any such purpose. The significance and import of these words in the grant cannot, we think, be overlooked. Nor can they be disregarded unless they plainly contravene some settled rule of law, which...