Collier v. Archer
Decision Date | 26 May 1914 |
Citation | 167 S.W. 511,258 Mo. 383 |
Parties | ROBERT E. L. COLLIER, Plaintiff in Error, v. JOHN ARCHER |
Court | Missouri Supreme Court |
Error to Jackson Circuit Court. -- Hon. James E. Goodrich, Judge.
Affirmed.
J. M Rader, Clyde Taylor and Guthrie, Gamble & Street for plaintiff in error.
(1) Upon the execution of this deed, the grandchildren did not take a fee simple. Long v. Timms, 107 Mo. 512. (2) From the fact that this deed in describing the interest of the grandchildren omits words of inheritance, and hence does not create what at common law would be a fee tail, it does not follow that it should be held to convey a fee simple to the grandchildren, nor that the court should fail to search for the true intent of the grantor and interpret the deed accordingly. R. S. 1909, sec. 583; Chiles v Bartleson, 21 Mo. 344; Gibson v. Bogy, 28 Mo 478; Thompson v. Craig, 64 Mo. 312; Bean v. Kenmuir, 86 Mo. 666; Orr v. Rode, 101 Mo. 387; Long v. Timms, 107 Mo. 512; McCullock v. Holmes, 111 Mo. 445; Cornwell v. Wulff, 148 Mo. 542; Walton v. Drumtra, 152 Mo. 489; Speed v. Terminal Ry. Co., 163 Mo. 111; Yocum v. Siler, 164 Mo. 281; Utter v. Sidman, 170 Mo. 284; Chew v. Kellar, 171 Mo. 215; Roth v. Rauschenbusch, 173 Mo. 582; Underwood v. Cave, 176 Mo. 1; Gannon v. Albright, 183 Mo. 238; Williamson et al. v. Brown, 195 Mo. 313; Buxton v. Kroeger, 219 Mo. 224; Gibson v. Gibson, 239 Mo. 490. (3) The grantor intended that the grandchildren should have only a life estate and that at their death it should go to their issue, if they had any. 2 Blackstone, p. 106; 4 Kent, p. 5; 2 Preston on Estates, p. 473; Tiedman on Real Property, secs. 45, 46, 47; R. S. 1909, secs. 2870, 2872, 579; Farrar v. Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; Thompson v. Craig, 64 Mo. 312; Kinney v. Mathews, 69 Mo. 520; Wood v. Kice, 103 Mo. 329; Cross v. Hoch, 149 Mo. 325; Yocum v. Siler, 160 Mo. 281; Gannon v. Pauk, 183 Mo. 265; Gannon v. Albright, 183 Mo. 238, 200 Mo. 75; Cox v. Jones, 229 Mo. 53; Threlkeld v. Threlkeld, 238 Mo. 459; Gibson v. Gibson, 239 Mo. 490. (4) Valentine had no issue when the deed was executed. The remainder to his children was contingent, and did not vest until his death. Emerson v. Hughes, 110 Mo. 627; Rozier v. Graham, 146 Mo. 352; Buxton v. Kroeger, 219 Mo. 224; Cox v. Jones, 229 Mo. 53; Gray v. Ward, 234 Mo. 291; Brown v. Tuschoff, 235 Mo. 449.
Simrall & Simrall, Kenneth McC. DeWeese and Sandusky & Sandusky for defendant in error.
(1) In a deed at common law the word "heirs" was necessary to create a fee simple estate. Tygard v. Hartwell, 204 Mo. 207; 1 Sharswood's Blackstone's Com., p. 107; 1 Jones, Real Prop. (Ed. 1886), sec. 5; 1 Washburn on Real Prop. (3 Ed.), p. 71; 2 Am. & Eng. Ency. Law (2 Ed.), p. 367. This rule was not inflexible in cases of wills. Gannon v. Pauk, 183 Mo. 275. (2) As the word "heirs" was necessary at common law in a deed to create a fee, so the words "heirs of the body," or "bodily heirs" was necessary at common law in a deed to create a fee tail. 1 Sharswood's Blackstone's Com., p. 115 (foot p. 477); 1 Washburn on Real Prop. (3 Ed.), pp. 87, 89, 92, secs. 24, 31, 39, 40; 1 Jones, Real Prop. (Ed. 1886), sec. 614; 2 Am. & Eng. Ency. Law (2 Ed.), p. 372; Tygard v. Hartwell, 204 Mo. 207; Yocum v. Siler, 160 Mo. 292; Gannon v. Pauk, 183 Mo. 273. (3) It will be observed that this deed does not contain the words "heirs," nor the words "heirs of the body," neither in the grant to Valentine S. P. Collier and Louisia F. Collier, nor in stating the contingency upon which the land should pass to Frances E. Long. The deed did not, therefore, at common law, create either a fee simple or a fee tail estate in Valentine S. P. Collier and Louisia F. Collier, but at common law created in them only a life estate. By our statute (R. S. 1835, p. 119, title "Conveyances," sec. 2) it passed the fee simple title, and the subsequent clause in relation to their "Death without issue" merely marked the contingency upon the happening of which the estate should pass to Frances E. Long. It follows that Sec. 5, R. S. 1835, p. 119, has no application to this case. (4) The deed in controversy conveyed, by our statute, a fee simple title to Valentine S. P. Collier and Louisia F. Collier. R. S. 1835, p. 119, title "Conveyances," sec. 2; Tygard v. Hartwell, 204 Mo. 207. And this fee simple estate will not be cut down to a lesser estate by "subsequent ambiguous words, inferential in their intent." Gannon v. Pauk, 200 Mo. 75; Gannon v. Albright, 183 Mo. 239; Yocum v. Siler, 160 Mo. 281; Yocum v. Parker 130 F. 722, 134 F. 205. As the deed in controversy created a fee simple estate by statute (the statute in this instance plainly giving effect to what the grantor intended by the words "absolute property") the learning in the books as to the technical effect, at common law, of the words "Dying without issue," when used in connection with the word "heirs," does not arise in this case. When section 6, R. S. 1845, p. 220, was passed, there had been no decision in Missouri on the technical effect of the words "dying without issue," in a conveyance of land. This section construed these words, and so anticipated the vexed question, but the section was and is in harmony with the law in Missouri without this section. By all authorities these words were ambiguous. 8 Bush. (Ky.), 636; 6 Ohio St. 563; Yocum v. Siler, 160 Mo. 294; 4 Kent's Com. (12 Ed.), star p. 281, foot p. 301. And being ambiguous, they cannot cut down a prior fee simple estate. R. S. 1835, p. 119, sec. 2.
This suit was begun in the circuit court of Clay county, and there was a change of venue to the circuit court of Jackson county at Kansas City. The petition is in two counts; the first to quiet title to so much of the north ninety acres of the east half of section eight, township fifty-one, range thirty-one, as lies south and east of the right of way of the Chicago, Milwaukee & St. Paul Railroad, being about sixty acres; the second, in ejectment for the same land. There was a judgment for defendant, and plaintiff has appealed.
Valentine S. Peyton, the common source of title, executed a deed as follows:
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