Chew v. Kellar

• Decision Date: 24 December 1902
• Citation: 71 S.W. 172,171 Mo. 215
• Parties: CHEW, Appellant, v. KELLAR et al
• Court: Missouri Supreme Court

71 S.W. 172

171 Mo. 215

CHEW, Appellant, v. KELLAR et al

Supreme Court of Missouri, First Division

December 24, 1902

Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

Crow & Eastin for appellant.

(1) The deed from Ellington to Martha O. Gunn, conveyed to the grantee the fee simple title to the real estate free and clear from the control, interference, curtesy and other interests of her husband. It was designed by the grantor to create in the grantee a separate, equitable estate in fee simple, free from her husband's control and curtesy, and nothing more. This has been done by the express language of the deed. The intention is plain, and the intention must control. Fanning v. Doan, 128 Mo. 323; Long v Timms, 107 Mo. 512; Davis v. Hess, 103 Mo. 31; Gibson v. Bogy, 28 Mo. 478; Rines v Mansfield, 96 Mo. 394. (2) The deed was drawn by a layman, and when he inserted the clause, "It is the intent by this deed to convey to the sole use and benefit of the party of the second part the above granted premises to be held and enjoyed by her separate and apart from her said husband wholly free and clear from his control, interference debts, and liabilities, curtesy and all other interests whatsoever," he intended by it to interpret the language previously used, and to declare in common terms the full purpose of the grantor. When such a clause is inserted, it is of controlling importance in determining intention. Murphy v. Gabbert, 166 Mo. 596; 2 Devlin on Deeds, sec. 837; Coleman v. Beach, 97 N.Y. 545; Bent v. Rogers, 137 Mass. 192. (3) The word "bodily" in the Ellington deed is not used in its technical sense. The clause inserted after the description ascribes to it a different meaning. "The grantor in a deed has the right by a clause inserted in the same, to set aside the general sense of the words he uses, and for the purposes of the deed in question, to assign to them another and different meaning." Morrison v. Wilson, 30 Cal. 344; Railroad v. Beal, 47 Cal. 157; 2 Devlin on Deeds, sec. 837. Plain intention will prevail over technical terms. Daniel v. Whortenbey, 17 Wall. 643; DeVaughn v. Hutchinson, 165 U.S. 570. (4) The provision of the deed which declares the intention of the parties expressly bars curtesy. If effect be given to the word "bodily," a life estate is created in Martha, and curtesy is not an incident of a life estate. Spencer v. O'Neil, 100 Mo. 49; Phillips v. LaForge, 89 Mo. 73. Curtesy does attach, however, to a separate equitable estate, unless expressly barred by the instrument creating it. McTigue v, McTigue, 116 Mo. 138; Kennedy v. Koopman, 166 Mo. 87. Some effect, if possible, must be given to the language barring curtesy. This can not be done if the word "bodily" prevails. (5) Estates tail "are, in their nature, inalienable, and upon failure of issue in lineal descent from the first taker, revert to the grantor. They have ever been obnoxious to the instincts of our people, and have for so long a time been abolished by positive law that it can hardly ever now be presumed that the grantor in a deed intends to create such an estate. That he has done so in any case ought not to be concluded unless the terms of the deed plainly require such a construction." Fanning v. Doan, 128 Mo. 328. (6) The parties to both the Ellington and Perkinson deeds understood that the fee was conveyed, and when Martha, the grantee, gave the deed of trust to the Phoenix Mutual Life Insurance Company and the commission deed of trust which was foreclosed and under which title is here asserted (both of which were "grant, bargain and sale" deeds), she thereby asserted, among other things, that she was, "at the time of the execution of such conveyances, seized of an indefeasible estate, in fee simple in the real estate thereby granted," and the law is that, in construing an instrument, the acts and conduct of the parties to it are entitled to great weight. Hunter v. Patterson, 142 Mo. 310; Patterson v. Camden, 25 Mo. 13; Belch v. Miller, 32 Mo.App. 387; Moser v. Lower, 48 Mo.App. 85; Ridge v. Transfer Co., 56 Mo.App. 133; Dakin v. Savage, 172 Mass. 23. (7) Independent of the special clause inserted for the express purpose of declaring intention, appellant is entitled to recover. The granting clause reads "grant, bargain and sell, convey and confirm, unto the said party of the second part, her bodily heirs and assigns." Assigns means "assignees -- persons to whom a grantee may potentially convey." Anderson's Law Dictionary. These words conferred a power upon the grantee. It has been exercised, and appellant, through the exercise of that power, holds the fee. Peck v. Ingraham & Read, 28 Miss. 246; Rines v. Mansfield, 96 Mo. 394; Brown v. Agricultural Assn., 34 Minn. 545; Nopson v. Horton, 20 Minn. 239; Bank v. Ellicott, 6 Gill & John. 663; Baily v. DeCrespingy, L. R. 4, Q. B. 186; Coke upon Littleton, 9, 6; 3 Washburn on Real Prop. (5 Ed.), p. 6. (8) The deed from Perkinson to Martha is a quitclaim, and an estate tail can not be created by a quitclaim deed. While the quitclaim, under our law, contains operative words of conveyance, it can do no more than relinquish whatever interest the grantor has, and this interest it passes forever. The possibility of a reversion, which is an incident of an estate tail, is wholly foreign to every idea even remotely suggested by a quitclaim. At common law it was used: (a) To enlarge a particular estate in possession; as where the reversioner releases the inheritance to the tenant for life. (b) To pass the interest of one co-parcener or joint tenant to another. (c) To transfer to a disseizor the desseizee's right of entry, and thus make the disseizor's title absolute. Tiedeman on Real Prop., 722. Its modern powers have been enlarged somewhat, but no authority can be found which gives it the power to project an estate into the future, and then, upon certain contingencies, draw it back again to the grantor. The most diligent search has failed to discover to us a case where this question has been directly decided, but in the case of Gibson v. Chouteau's Heirs, 39 Mo. 567, it is said, in discussing another phase of the quitclaim, that, "It must not be a quitclaim deed merely transferring the grantor's interest, whatever it may be, but a deed which expressly undertakes to convey the land itself." This language states the difference between a quitclaim and a warranty. The one relinquishes or transfers whatever interest the grantor has in the land, the other conveys the land itself. (9) By the deed from Perkinson and wife, Martha took either the fee or as tenant in common with her children in being at the time the deed was executed. Fanning v. Doan, 128 Mo. 323; Hamilton v. Pitcher, 53 Mo. 336; Allen v. Claybrook, 58 Mo. 124; Rines v. Mansfield, 96 Mo. 394.

Johnson & Johnson and Crawley & Son for respondents.

Each of the two deeds in controversy vested in Martha a life estate only, with remainder to the heirs of her body; and the judgment of the circuit court should be affirmed. Bean v. Kenmuir, 86 Mo. 671; Godman v. Simmons, 113 Mo. 122; Reed v. Lane, 122 Mo. 311; Hunter v. Patterson, 142 Mo. 310; Davidson v. Manson, 146 Mo. 608.

OPINION

MARSHALL, J.

This is an action in ejectment for the west half of the southeast quarter, and the south half of the south half of the northeast quarter of section eighteen, township fifty-three, range sixteen, in Chariton county. While the case was pending on appeal in this court, the plaintiff died, and the case has been properly revived in the names of his sole legatees, Elizabeth Chew and Delia A. Brown.

The controversy hinges upon the construction of two deeds. The first is a warranty deed from Samuel D. Ellington and wife to their daughter, Martha O. Gunn, wife of James Gunn, dated September 16, 1879, conveying the west half of the southwest quarter of section eighteen. The deed grants, bargains, sells, conveys and confirms, "unto the said party of the second part, her bodily heirs and assigns," the land specified above. Then, following the description of the property, is this provision in the deed:

"It is the intent by this deed to convey to the sole use and benefit of the party of the second part, the above granted premises, to be held and enjoyed by her, separate and apart from her said husband and wholly free and clear from his control, interference, debt and liabilities, curtesy and all other interests whatsoever."

The deed then contains the habendum and tenendum clauses and covenants as to title.

The second deed is a quitclaim deed from T. P. Perkinson and wife, parties of the first part, "and Martha O. Gunn and the heirs of her body of the county of Chariton, in the State of Missouri, party of the second part," and conveys the south half of the south half of the northeast quarter of section eighteen. The habendum clause is: "To have and to hold the same with all the rights, immunities, privileges and appurtenances thereto belonging, unto the said parties of the second part," etc.

The plaintiff traces title in this way: On April 24, 1895, Martha O. Gunn and her husband executed a deed of trust on the property, which purported to cover the fee, subject to a prior deed of trust. Default was made thereon, the trust foreclosed and the plaintiff Chew became the purchaser at the trustee's sale.

The petition is in the usual form, and the answer is an admission of possession, a claim of ownership, and otherwise a general denial.

Upon the trial the plaintiff introduced the two deeds to Mrs Gunn, the trustee's deed to the plaintiff, and proved the value of the rents and profits. On cross-examination of plaintiff's witnesses the defendants showed that Mrs. Gunn died in March, 1896, before the institution of this suit, leaving certain...