Bullock v. Peoples Bank of Holcomb

• Decision Date: 27 August 1943
• Docket Number: 38368
• Parties: Thaddeus J. R. Bullock, Appellant, v. Peoples Bank of Holcomb, now doing business as State Bank of Campbell, Campbell, Missouri, and Elna Bullock
• Court: Missouri Supreme Court

173 S.W.2d 753

351 Mo. 587

Thaddeus J. R. Bullock, Appellant, v. Peoples Bank of Holcomb, now doing business as State Bank of Campbell, Campbell, Missouri, and Elna Bullock

No. 38368

Supreme Court of Missouri

August 27, 1943

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

McKay & McKay and James A. Bradley for Thaddeus J. R Bullock, appellant.

(1) The construction of a deed must be determined by the language contained within the four corners of the deed and the question of construing deeds has been before the court many times in this State, and this rule will be followed by the court in construing this deed. Utter v. Sidman, 170 Mo. 284, 70 S.W. 705; Tennison v. Walker, 190 S.W 9; Owen v. Trail, 302 Mo. 292, 258 S.W. 699; Nations v. Spence, 235 S.W. 1064; Miller v Ensminger, 182 Mo. 195; Inlow v. Herren, 306 Mo. 42. (2) Unborn children cannot be made tenants in common in an estate presently created. A deed cannot create an estate in co-tenancy between a named person and his children now born and his children to be born. Kinney v Mathews, 69 Mo. 520; Tygard v. Hartwell, 204 Mo. 200. (3) In construing a deed bearing upon its face evidence of a lack of learning in the writer, the court will not strictly apply the technical meaning of technical words but recognizing its unskillful source will aim to gather its dominant intention from the inartificial terms used. Still the court must take the deed as it finds it; it cannot reconstruct it or give it a meaning different from what appears on its face. Tygard v. Hartwell, 204 Mo. 200; Willis v. Robinson, 291 Mo. 650, 237 S.W. 1023; Aldrich v. Aldrich, 202 Mo. 565; Shepard v. Anderson, 192 S.W. 952. (4) In ordinary acceptation title to land is considered to mean legal title. Thygerson v. Whitbeck, 16 P. 403, 5 Utah 406; 8 Words & Phrases, p. 6890. (5) The word "title" when used in reference to title to real estate implies an estate in fee nothing short thereof is a complete title. Gillespie v. Boras, Barb. 370; 8 Words and Phrases, p. 6980. (6) The use of the words "heirs and assigns" while unnecessary in conveying a title in fee does not ordinarily cast doubt on the intention of the testator or grantor to pass the whole title to grantee or devisee. Gannon v. Albright, 183 Mo. 238. (7) The word "heirs" when construed in connection with other language in wills and deeds sometimes aids in expressing an intention to convey a life estate with remainder to heirs or children. Pratt v. Railroad, 130 Mo.App. 175; Gross v. Hoch, 149 Mo. 325; Kinney v. Mathews, 69 Mo. 501; Yocum v. Siler, 160 Mo. 282; Utter v. Sidman, 170 Mo. 284; Tennison v. Walker, 190 S.W. 9; Garrett v. Wiltse, 252 Mo. 699; Grooms v. Morrison, 249 Mo. 544; Howell v. Sherwood, 242 Mo. 536; Koehler v. Roland, 275 Mo. 583; Sims v. Brown, 252 Mo. 58; Emerson v. Hughes, 110 Mo. 627; Goodman v. Simmons, 113 Mo. 122. (8) The law favors vested estates and where there is doubt as to whether remainder is vested or contingent, courts will construe it as a vested estate. Linville v. Grear, 165 Mo. 380; Green v. Irvin, 274 S.W. 684; Chew v. Keller, 100 Mo. 362; Heady v. Hollman, 251 Mo. 632. (9) A vested remainder is a vested interest to take effect in possession after a particular estate has expired. Heady v. Hollman, 251 Mo. 632. (10) The deed in question under a fair construction, taking into consideration the language of the deed contained between its four corners, vests a life estate in Elna Bullock, one of the grantees, and the fee simple over to her bodily heirs, creating a fee tailed estate, and by the statute abolishing fee tailed estates in this state; instead of being seized in fee tail the said Elna Bullock shall be deemed and adjudged to be and shall become seized thereof for her natural life only and the remainder to pass in fee simple absolute to whom the estate tail would on the death of the first grantee, devisee or donee in tail first pass according to the course of common law by virtue of such device, grant or conveyance. Sec. 3498, R. S. 1939; Wood v. Kice, 103 Mo. 329; Bone v. Tyrell, 113 Mo. 175; Clarkson v. Clarkson, 125 Mo. 381; Brown v. Rogers, 125 Mo. 392; Hunter v. Patterson, 142 Mo. 310; Miller v. Esminger, 182 Mo. 195; King v. Theis, 272 Mo. 416; Inlow v. Herren, 306 Mo. 45, 267 S.W. 893; Tennyson v. Walker, 190 S.W. 9; Stockwell v. Stockwell, 262 Mo. 671; Elsie v. Smith, 273 Mo. 396; Nicholson v. Robertson, 211 S.W. 14; Shaw v. Bank, 23 S.W.2d 20; Wilhite v. Rathburn, 61 S.W.2d 708; Davis v. Stevens, 124 S.W.2d 1132; Cox v. Jones, 229 Mo. 53; Reed v. Lane, 122 Mo. 315; Williams v. Reid, 37 S.W.2d 537; Daniel v. Whartenby, 21 L.Ed. 661. (11) A vested remainder is a vested interest to take effect in possession after a particular estate has expired. Rodney v. Landall, 104 Mo. 251; Chew v. Keller, 100 Mo. 362; Buxton v. Kroger, 219 Mo. 225; Emerson v. Hughes, 110 Mo. 627. (12) The vested or contingent character of the remainder is determined, not by the uncertainty of enjoying possession, but by the uncertainty of vesting the estate. Rodney v. Landall, 104 Mo. 251; Chew v. Keller, 100 Mo. 362; Buxton v. Kroger, 219 Mo. 235; Emerson v. Hughes, 110 Mo. 627. (13) The fee simple title under and by virtue of Section 3498, R. S. 1939, vested in Thaddeus J. R. Bullock on May 7, 1917, the date of his birth. Sec. 3498, R. S. 1939; Wood v. Kice, 103 Mo. 329; Bone v. Tyrell, 113 Mo. 175; Clarkson v. Clarkson, 125 Mo. 381; Brown v. Rogers, 125 Mo. 392; Hunter v. Patterson, 142 Mo. 310; Miller v. Esminger, 182 Mo. 195; King v. Theis, 272 Mo. 416; Inlow v. Herren, 306 Mo. 45, 267 S.W. 893; Tennyson v. Walker, 190 S.W. 9; Stockwell v. Stockwell, 262 Mo. 671. (14) The said Thaddeus J. R. Bullock took said fee simple title as purchaser under and by virtue of Section 3500, R. S. 1939. The rule in Shelly's case is abolished by this section. Tesson v. Newman, 62 Mo. 198; Mulvrow v. White, 67 Mo. 470; Charles v. Patch, 87 Mo. 450; Wood v. Kice, 103 Mo. 329; Emerson v. Hughes, 110 Mo. 618; Tygard v. Hartwell, 204 Mo. 200; Nichols v. Robinson, 211 S.W. 14; Brock v. Durman, 98 S.W.2d 672. (15) Merger of estates in law is defined as: "when a greater estate and a less coincide and meet in one and the same person in one and the same right without any intermediate estate there is a merger at law." Bassett v. O'Brien, 149 Mo. 381; Wanderly v. Gassler, 118 Mo.App. 708; Hardy v. Atkinson, 136 Mo.App. 595. (16) The life estate was merged and destroyed. 5 Words & Phrases, p. 4492; Bassett v. O'Brien, 149 Mo. 381; Phillips v. Jackson, 240 Mo. 310; Carey v. Lafon, 133 Mo.App. 163; Sorrell v. Bradshaw, 222 S.W. 1024; Williams v. Robinson, 237 S.W. 1030; Hill v. Arnold, 177 S.W. 243; Ross v. Presbyterian Church, 272 Mo. 96; 40 C. J., p. 649; Willis v. Robinson, 291 Mo. 650, 237 S.W. 1030; 2 Bouvier's Law Dictionary, p. 2197; Ramsey v. Hicks, 44 Ind.App. 490, 87 N.E. 1091, 89 N.E. 597; Alabama, etc., Railroad Co. v. Tollman, 200 Ala. 449, 75 So. 381. (17) There was no reversionary interest which could pass at any time after the execution of said deed and especially after the birth of Thaddeus J. R. Bullock. (18) The fee simple title of, in and to the lands in controversy and described in the petition herein, vested in Thaddeus J. R. Bullock under and by virtue of Section 3498, immediately after his birth on May 7, 1917. (19) The petition filed in the cause asking to set aside the deed shows upon its face that it was so amended, altered and changed prior to the rendition of the judgment so as to constitute no cause of action whatever. Commercial State Bank v. Ankrum, 192 Mo.App. 251; Martin v. Mitchel, 22 Mo. 50; Crim v. Walker, 79 Mo. 335; Cantwell v. Columbia Lead Co., 199 Mo. 1. (20) If the conveyance is set aside by the creditors of the grantors, it is set aside only to such creditors and does not affect nor operate to reinvest title in the grantor, his heirs or anyone claiming under him. 20 Cyc. 617; 27 C. J. 655, sec. 433, subdiv. 4; Sturgis v. Portis Mining Co., 206 F. 534; Hall v. Byrd, 196 F. 762; Stevens v. Edwards, 98 Mo. 622; Thomas v. Thomas, 107 Mo. 459; McGee v. Garringer, 224 S.W. 822; McFarland v. Bishop, 283 Mo. 534; 222 S.W. 143; Stillwell v. Bell, 248 Mo. 61, 154 S.W. 85; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Miller v. Miller, 206 Mo. 341, 102 S.W. 962; McNear v. Williamson, 166 Mo. 358, 66 S.W. 160; Whitaker v. Whitaker, 157 Mo. 342; Sell v. West, 125 Mo. 621, 28 S.W. 696; Sauter v. Levridge, 103 Mo. 615, 15 S.W. 981; Larimore v. Tyler, 88 Mo. 661; McLaughlin v. McLaughlin, 16 Mo. 242; Scudder v. Atwood, 55 Mo.App. 512. (21) The rule applied whether creditors were injured or not. The grantor cannot have the instrument cancelled where it was fraudulent in its inception as to creditors or where it was bona fide in its inception but used for fraudulent purpose so the party making the conveyance cannot recover back the property from any person holding under or through the vendee. 27 C. J. 656, sec. 426; Bobb v. Woodard, 50 Mo. 95; Henderson v. Henderson, 13 Mo. 157; Reed v. Mullens, 48 Mo. 344; Hall v. Callahan, 66 Mo. 323; Shaw v. Troy, 83 Mo. 224; George v. Williams, 26 Mo. 190; Bunny v. Taylor, 90 Mo. 71; Turner v. Johnson, 95 Mo. 431; Charles v. White, 214 Mo. l. c. 202; Zall v. Soper, 75 Mo. 460; Larimore v. Tyler, 88 Mo. 661; Lewis v. Insurance Co., 7 Mo.App. 112; Roselle v. Harmon, 29 Mo.App. 569; McFarland v. Creath, 35 Mo.App. 112; St. Francis Mill v. Sugg, 169 Mo. 130; Hayes v. Fry, 110 Mo.App. 20. (22) Defendant bank could not purchase and obtain the fee simple title to any of the lands in controversy, while the said bank was holding any portion of said lands under levy and sale of the life estate of Elna Bullock. By virtue of the conveyance through the tax deed, the bank became the trustee of...