Blumenthal v. Blumenthal

• Decision Date: 28 June 1913
• Citation: 158 S.W. 648,251 Mo. 693
• Parties: OTTILLIE BLUMENTHAL et al. v. AUGUSTUS A. BLUMENTHAL et al., Appellants
• Court: Missouri Supreme Court

158 S.W. 648

251 Mo. 693

OTTILLIE BLUMENTHAL et al. v. AUGUSTUS A. BLUMENTHAL et al., Appellants

Supreme Court of Missouri, Second Division

June 28, 1913

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed.

J. L Hornsby for appellants.

(1) In construing a deed every part should be given effect. Chew v. Kellar, 171 Mo. 223; 17 Am. & Eng. Ency. Law (2 Ed.) p. 7, n. 3. (2) Parol testimony is not permissible to vary or control the words of a grant in a deed. Wolff v. Dyer, 95 Mo. 545; Jennings v. Brizeadine, 44 Mo. 332. (3) The word "half" where used in the deed in defining the respective interests of appellants and respondents should be construed literally, and means half in quantity. Boom Co. v. Whitney, 26 Mich. 42; Dart v. Barbour, 32 Mich. 267; Owen v. Henderson, 16 Wash. 39; Winslow v. Cooper, 104 Ill. 235; Cogan v. Cook, 22 Minn. 137.

M. W. Feuerbacher for respondents.

(1) Nothing but monuments can control courses and distances. Where the land is described by another's land, the latter tract of land is a monument of description, and the true line of his land will control the courses and distances given in the deed. Tiedeman Real Property (3 Ed.), p. 878-9, par. 603; Peaslee v. Gee, 19 N.H. 273; Park v. Pratt, 38 Vt. 552; Smith v. Land & Imp. Co., 117 Mo. 444; Harding v. Wright, 119 Mo. 9; Whittaker v. Whitaker, 175 Mo. 11. (2) To render a deed or other instrument ambiguous, or void for uncertain description, the ambiguity must be patent, and appear on its face; but where the deed or instrument appears certain and without ambiguity and the uncertainty arises by matter outside of the instrument, then it contains a latent ambiguity and may be explained by the application of extrinsic evidence. Hardy v. Matthews, 38 Mo. 124; Lego v. Medley, 79 Wis. 218; Robards v. Brown, 167 Mo. 457; Goff v. Roberts, 72 Mo. 573; Schreiber v. Osten, 50 Mo. 516; Morgan v. Burrows, 45 Wis. 217; Jones v. Pashby, 62 Mich. 614. (3) The meaning that the parties attached to the language employed, especially in matters of description, may be shown by parol evidence relating to the situation and condition of the subject-matter. Devlin on Real Estate (3 Ed.), sec. 1015a, p. 1937; Lego v. Medley, 79 Wis. 211; Lyman v. Babcock, 40 Wis. 512. (4) A controlling principle in the construction of deeds as well as of wills and other instruments in writing, is to ascertain the meaning of the grantor from the words he uses, in the light of the circumstances which surrounded, attended and waited upon his use of them. Long v. Timms, 107 Mo. 512; Carter v. Foster, 145 Mo. 392; Speed v. Terminal Ry. Co., 163 Mo. 124; Aldridge v. Aldridge, 202 Mo. 572; Ganson v. Madigan, 15 Wis. 154; Railroad v. Frowein, 163 Mo. 17; Construction Co. v. Tie Co., 185 Mo. 62; Bernero v. Real Estate Co., 134 Mo.App. 299. (5) There can be no universal rule that the word half shall be interpreted in its ordinary meaning of one-half of the quantity, for it is often used in conveyances when the context indicates a sense quite different. Jones v. Pashby, 48 Mich. 637, 62 Mich. 614; Iron M. Co. v. Mining Co., 80 Mich. 491; Wolfe v. Dyer, 85 Mo. 545; Devlin on Real Estate (3 Ed.), sec. 1042, p. 2025; Grandy v. Casey, 93 Mo. 595.

BROWN, P. J. Walker and Faris, JJ., concur.

OPINION

BROWN, P. J.

Action to determine and quiet title to real estate. From a judgment for plaintiffs, defendants appeal.

August A. Blumenthal, Sr., a citizen of St. Louis, was the father of four children; two sons, August A. Blumenthal, Jr., and Berthold W. Blumenthal; and two daughters, Paulina Blumenthal and Otillie Blumenthal.

On January 26, 1876, and only a few months before his death, said August A. Blumenthal, Sr., conveyed to one John N. Straat, as trustee for his sons and daughters above named, a parcel of land in St. Louis City, which parcel of land has a frontage of eighty-two feet on the east side of Broadway street (then known as Main street), bounded on the north by Elwood street, on the south by the homestead of said grantor, and extending back eastward from said Broadway street an average depth of 163 feet to the right-of-way of the St. Louis, Iron Mountain & Southern Railway Company.

On the northwest corner of this parcel of land was and is situated a three-story brick building, fronting forty-eight feet on Broadway street and extending eastward along the south boundary of Elwood street about fifty-five feet.

The front entrance to this building is on Broadway street, where there is a hallway about eight feet wide extending from west to east through the entire building, and from the first floor upward to the third floor thereof. The several floors of said building are connected by stairs in the above-mentioned hallway. The hallway divides the three-story building in the middle, and the first floor is fitted up for stores, and the second and third floors for residences or other purposes.

On the north side of this parcel of land, and in the rear of the three-story building before described, are two small one-story brick buildings fronting on Elwood street, neither of which extends southward from said Elwood street more than twenty feet.

This parcel of land, eighty-two feet wide north and south, by an average depth of 163 feet, was in the condition hereinbefore set out, when August A. Blumenthal, Sr., conveyed the same to Straat, as trustee, for the use of his two sons and two daughters, hereinbefore named, by deed, which reads as follows (Italics are ours):

"This deed, made and entered into this twenty-sixth day of January, A. D. 1876, by and between Augustus A. Blumenthal, party of the first part, of the city and county of St. Louis and State of Missouri, and John N. Straat of the same place, party of the second part, and Augustus A. Blumenthal, Jr., and Paulina and Ottillie Blumenthal and Berthold W. Blumenthal, parties of the third part. Witnesseth: That said party of the first part, in consideration of one dollar to him in hand paid by the said party of the second part, and in further consideration of the natural love and affection which he has towards the said parties of the third part, has granted, bargained and sold unto the said party of the second part in such manner as will hereafter be fully explained, a lot of ground situated in South St. Louis, Missouri, having a front of eighty-six feet on the east side of Main street, running back eastwardly of that width one hundred fifty feet, more or less, up to the Iron Mountain Railroad track, bounded west by Main street, north by Elwood street, east by railroad track and south by ground heretofore owned by the grantor and given to his wife during her natural life, and being about eighty-six feet off the northwest corner of block No. 7 of Eiler's survey of the town of Carondelet, which is now city block No . . . . the right of the third parties is such as herein named, that Augustus A. Blumenthal, Jr., having the north side of the heretofore described premises during his life, and at his demise his daughter Genevieve will hold the premises to herself and the heirs of her body forever. Provided, however, in case if said Genevieve shall die before the death of her father, leaving heirs of her body living at the time of the death of her father, the title to that half of said property conveyed to Augustus A. Blumenthal, Jr., shall go and vest in the heirs of the body of said Genevieve and to their heirs and assigns forever. In case said Genevieve shall die without leaving heirs of her body then and in such a case the title to her share shall got to and vest in the heirs of the said party of the first part and their heirs and assigns forever. Paulina and Ottillie to get the southern half of the premises heretofore described under the condition as herein provided in fee simple that Berthold W. Blumenthal has the possession of their property during his life and after his demise they will be entitled of all rights, rents and profits deriving from said premises, but in case one of them should die the estate will go to her sister, but instead if both should die without leaving any heirs of their body, then the estate will go and vest under the same conditions to the heirs of the grantor in common, but if they should die and leave any heirs of their body, the estate will go and vest in them and their heirs and assigns forever. In all other respects Aug. A. Blumenthal, Jr., shall be tenants in common as far as the payment of taxes, insurance and repairs is concerned, with Berthold W. Blumenthal, the property is now insured in the Home Mutual in St. Louis for six years. Now, when the six years run out I want them to insure in four good mutual companies, in each one for fifteen hundred dollars. Now, if Berthold W. Blumenthal and if Augustus A. Blumenthal, Jr., shall promptly pay the taxes and insurance when due and shall keep the house in good order and repair, then in that case no rent shall be collected from them under no pretense whatever. To have and to hold said described premises and all rights, privileges and appurtenances thereunto belonging as herein conditioned unto him the said John N. Straat and his successor or successors in trust as herein has been described. In witness whereof, the said party of the first part and second part have hereunto set their hands and seals the day and year first above herein written.

"Aug. A. Blumenthal, (Seal)

"Jno. N. Straat, Trustee. (Seal)"

The real purpose of this action is to construe the above-quoted deed.

The learned trial judge being of the opinion that the foregoing deed possessed certain latent ambiguities admitted oral evidence showing the situation of the property and that immediately after the deed was executed said August A. Blumenthal, Jr., took...