Bullock v. Porter

• Decision Date: 12 December 1955
• Docket Number: No. 2,No. 43767,43767,2
• Citation: Bullock v. Porter, 284 S.W.2d 598, 365 Mo. 572 (Mo. 1955)
• Parties: Thaddeus J. R. BULLOCK, Appellant, v. Elna PORTER and Chester Porter, Respondents
• Court: Missouri Supreme Court

Page 598

284 S.W.2d 598

365 Mo. 572

Thaddeus J. R. BULLOCK, Appellant, v.Elna PORTER and Chester Porter, Respondents.

No. 43767.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1955.

Riddle & Baker, Veryl L. Riddle, Charles H. Baker, Malden, for appellant.

Bradley & Noble, Kennett, for respondentElna Porter.

STORCKMAN, Judge.

This action involving title to real estate, was tried before the court sitting without a jury.The plaintiff has appealed from a judgment rendered December 31, 1952, finding that the plaintiff's interest in the property was that of a contingent remainderman in fee simple without 'right of use or present enjoyment * * * until the termination of the life estate of defendantElna Porter,' and that the defendantChester Porter, husband of Elna Porter, had no interest in the property.The court further found that the property was not subject to partition.Since the defendantChester Porter has taken no active part in the trial of the case or on appeal, references to the defendant or the respondent will be intended to designate Elna Porter unless otherwise indicated.

The first amended petition upon which the case was tried was in three counts.The first count alleged that the plaintiff was the owner 'in fee simple, of an undivided one-half of the real property hereinbefore described and the remainderman, in fee simple, of the remaining undivided one-half of said property,' and that the defendantElna Porter is the owner of a life estate in an undivided one-half interest in said property.The second count alleged that the plaintiff was 'the owner, in fee simple, of an undivided three-fourths of the real property hereinbefore described and the remainderman, in fee simple, of the remaining undivided one-fourth of said property.'The third count was for partition of the property.DefendantElna Porter, by her amended answer, contends that she is the owner of a life estate in the entire property and is entitled to remain in possession for and during her natural life and that the plaintiff is a contingent remainderman not entitled to partition.DefendantChester Porter claimed no interest in the property and made default.

The real estate in question, located in Holcomb, Dunklin County, Missouri, is residence property.The legal controversy arises out of the terms used in the general warranty deed dated April 22, 1919, which, omitting the signature and acknowledgment, is as follows:

'This Indenture, Made on the 22nd day of AprilA.D. 1919, by and between M. A. Hogue of Dunklin County Missouri Party of the First Part, and J. R. Bullock and Elna Bullock(his wife) and her bodily heirs by J. R. Bullock of the County of Dunklin, in the State of Missouri, parties of the Second Part:

'Witnesseth, That said party of the First Part, in consideration of the sum of Eighty three hundred and no/100 * * * Dollars, to me paid by the said parties 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 parties of the Second Part, his heirs and assigns the following described Lots, Tracts or Parcels of Land, lying, being and situated in the County of Dunklin and State of Missouri, to-wit: [The real estate is here described by metes and bounds.]

'To Have and To Hold The premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining unto the said parties of the Second Part and unto his heirs and assigns, Forever, the said M. A. Hogue hereby covenanting that he is lawfully seized of an indefeasible Estate in Fee in the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear from any incumbrance done or suffered by me or those under whom I claim, and that I will Warrant and Defend the title to said premises unto the said parties of the Second Part, and unto his heirs and assigns, Forever, against the lawful claims and demands of all persons whomsoever Except all taxes for the year 1918 and hereafter.

'In Witness Whereof, The said party of the First Part have hereunto set his hand the day and year first above written.'

The original deed is before us as an exhibit; it is upon a printed form.The portions in italics were inserted in typewriting.

At the time of the conveyance J. R. Bullock and Elna Bullock(now Elna Porter) were married to each other and the plaintiff, their son and only child, was then one year and eleven months old.The defendantElna Porter testified that she paid $4,000 of the $8,400 consideration paid for the property.J. R. Bullock, his wife and son all occupied the property until November 18, 1930, when J. R. Bullock divorced his wife.After the divorce J. R. Bullock married again and Elna Bullock married Chester Porter.J. R. Bullock occupied the dwelling for about six months after his remarriage but removed therefrom at the request of the defendantElna Porter who, with her husband Chester Porter, has since occupied the property as her residence.

On February 19, 1935, J. R. Bullock died intestate leaving as his heirs the plaintiff and Pearl Ola Brooks, a daughter by a previous marriage.The defendant testified that the house was purchased for the use of Mr. Bullock, herself and their son.She claimed that she had 'the ruling of the house' and her son could live in the house with her if he helped a little with the expenses.The plaintiff, 35 years old at the time of the trial, has at least on occasions lived in the house with his mother and has contributed to the payment of some of the expenses of maintenance.

The plaintiff, on May 26, 1950, prior to the filing of the suit, obtained a quitclaim deed from his half sister, Pearl Ola Brooks, and her husband.The stated consideration was $1 and other valuable consideration.The plaintiff testified that he paid the $1, and that the other consideration consisted of a settlement whereby the plaintiff agreed not to press any claim against the Brooks for any money that he did not get from his father's estate.

Plaintiff asserts that his father, J. R. Bullock, was the owner of an undivided fee simple interest which plaintiff and his sister, Pearl Ola Brooks, inherited at the time of the father's death.The plaintiff attributes the creation of this interest to the use in the deed of the words 'his heirs and assigns' together with the fact of his father's divorcing the defendant.

The words 'J. R. Bullock and Elna Bullock(his wife) and her bodily heirs by J. R. Bullock,' standing alone, give little difficulty as to their meaning.At common law the term 'her bodily heirs' created a fee tail estate which limited the descent to the class of heirs specified.However, this has been changed by our statutes.Section 442.470 RSMo 1949, V.A.M.S., provides that any person who might become seized of an estate in lands that would have been in fee tail at common law, 'instead of being seized thereof in fee tail, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only; and the remainder shall pass in fee simple absolute to the person 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 the common law, by virtue of such devise, gift, grant or conveyance.'

Section 442.480 provides that where a remainder in lands shall be limited to take effect on the death of any person, the word heirs 'shall be construed to mean heirs or issue living at the death of the person named as ancestor.'Section 442.490 provides that where a remainder shall be limited to the heirs of the body of a person to whom a life estate in the premises shall be given, the persons who shall be the heirs of the body of such tenant for life 'shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.'

In the case of Mattingly v. Washburn, 355 Mo. 471, 196 S.W.2d 624, the deed of conveyance named as grantees "Nettie K. Mattingly and her bodily heirs * * * parties of the second part."It was held, 196 S.W.2d loc.cit. 626, that 'under the authorities Nettie K. Mattingly took a life estate under the deeds in question and her son John a contingent remainder, the contingency of his estate becoming vested being his qualifying upon the death of Nettie K. as her 'bodily heir,' a contingency which fell in when he predeceased his said mother.'

In the case of Stigers v. City of St. Joseph, Mo., 166 S.W.2d 523, the land was deeded to Quantie Stigers for and during the term of her natural life and at her death to the heirs of her body.This court held that the plaintiffs, who were sons of Quantie Stigers, were merely contingent remaindermen during their mother's lifetime and had no vested rights to protect during the lifetime of Quantie Stigers.Other Missouri cases are to the same effect.

The grant to J. R. Bullock and Elna Bullock, his wife, as we have seen, created a life estate in them by reason of the provisions of Sec. 442.470.Because they were husband and wife, their interest in the life estate was by the entirety because Sec. 442.450 permits such an estate and the authorities hold that this is the legal force and effect of such a conveyance.41 C.J.S., Husband and Wife, Sec. 34 b, p. 460;26 Am.Jur. 705, Husband and Wife, Sec. 80.

Plaintiff misconceives...