Crismond v. Kendrick

• Citation: 29 S.W.2d 1100,325 Mo. 619
• Decision Date: 11 June 1930
• Docket Number: 28420
• Parties: Horace Crismond and Ivy M. Spratt v. Birdie Kendrick et al.; Commerce Trust Company, B. C. Howard and Phoenix Mutual Life Insurance Company, Appellants
• Court: United States State Supreme Court of Missouri

29 S.W.2d 1100

325 Mo. 619

Horace Crismond and Ivy M. Spratt v. Birdie Kendrick et al.; Commerce Trust Company, B. C. Howard and Phoenix Mutual Life Insurance Company, Appellants

No. 28420

Supreme Court of Missouri

June 11, 1930

Motion for Rehearing Overruled June 11, 1930, Reported at 29 S.W.2d 1100 at 1112. Motion to Transfer to Banc Overruled June 11 1930.

Appeal from Carroll Circuit Court; Hon. John T. Morris Special Judge.

Affirmed.

Samuel D. Newkirk, Robert E. Coleberd and Sam Withers for appellants; Meservey, Michaels, Blackmar, Newkirk & Eager of counsel.

(1) The deeds of trust to Commerce Trust Company are valid and subsisting liens against the entire fee simple title, because Mark Bowling and Elizabeth Bowling had no title and the respondents acquired no estate in remainder under the deeds from Mark Bowling and Elizabeth Bowling or otherwise, and Sarah L. Crismond acquired a fee simple title to all the land by adverse possession. (a) The court erred in admitting in evidence the deeds from Mark Bowling and Elizabeth Bowling to Sarah L. Crismond, because the tax deed from the sheriff to William W. Compton dated September 5, 1847, was void. Laws 1843, pp. 139, 140, secs. 17 and 22; Ryan v. Carr, 46 Mo. 483; Adams v. Buchanan, 49 Mo. 64; Graton v. Land & Lumber Co., 189 Mo. 322; Stierlin v Daley, 37 Mo. 483; Dalton v. Fenn, 40 Mo. 109. And the evidence showed that neither Mark Bowling or Elizabeth Bowling had any record title to any part of the land, and there was no proof that they had acquired a title in any other manner or that they ever had any interest in said lands or were ever in possession thereof. The burden of proof was upon the respondents. Pullen v. Hart, 293 Mo. 61; Nall v. Conover, 223 Mo. 477. (b) The possession of the land by Sarah L. Crismond vested in her the fee simple title. R. S. 1919, secs. 1305, 1307; Peper v Trust Co., 281 Mo. 562; Barry v. Otto, 56 Mo. 177; Scannell v. Soda Fountain Co., 161 Mo. 606; Waddell v. Chapman, 292 Mo. 666. (c) The Bowling deeds did not prevent or estop Sarah L. Crismond from acquiring the fee simple title by adverse possession. Waddell v. Chapman, 292 Mo. 666; Campbell v. Gas Co., 84 Mo. 352; Shelby County v. Bragg, 135 Mo. 291; Hendricks v. Musgrove, 183 Mo. 300; St. Joseph v. Wyatt, 274 Mo. 566; Commonwealth of Kentucky v. Clark, 119 Ky. 85, 83 S.W. 100, 9 L. R. A. (N. S.) 750. An estate in fee tail can be created only by deed or a will. Kinney v. Mathews, 69 Mo. 520; Tygard v. Hartwell, 204 Mo. 200. (2) There is no presumption or proof that Sarah L. Crismond entered into possession under the Bowling deeds and her possession was in no way based on the Bowling deeds. Renshaw v. Lloyd, 50 Mo. 368; Kraus v. Congdon, 161 F. 18; Weir v. Lumber Co., 186 Mo. 388; Mather v. Walsh, 107 Mo. 121; Quick v. Rufe, 164 Mo. 408. (3) The deeds from Mark Bowling and Elizabeth Bowling purport to convey a fee simple title to Sarah L. Crismond. They do not purport to create an estate tail. Tennison v. Walker, 190 S.W. 9; Gannon v. Pauk, 200 Mo. 75; Johnson v. Morton, 67 S.W. 791; Adams v. Cary, 226 S.W. 834; Tygard v. Hartwell, 204 Mo. 200; Rimes v. Mansfield, 96 Mo. 394; Gibson v. Bogy, 28 Mo. 478; Frame v. Humphreys, 164 Mo. 336; Donan v. Intelligencer Printing & Publishing Co., 70 Mo. 168; Major v. Bukley & Peacher, 51 Mo. 227; Mott v. Morris, 155 S.W. 434; Grooms v. Morrison, 155 S.W. 430. (4) The quitclaim deed from Mark Bowling and Elizabeth Bowling to Sarah L. Crismond, purporting to convey a part of the south half of the southeast quarter of Section 22 is void because the description of the land is insufficient. Sims v. Brown, 252 Mo. 58. (5) The acknowledgment of Elizabeth Bowling to the deed from her and her husband to Sarah L. Crismond is insufficient and the deed is void as to her. Hendricks v. Musgrove, 183 Mo. 308; Evans v. Morris, 234 Mo. 177; Powell v. Bowen, 279 Mo. 280. (6) Ivy M. Spratt and Paul Crismond were estopped to deny that the two deeds of trust to B. C. Howard, trustee for the Commerce Trust Company, were valid and subsisting liens against their interests in the land. Guffey v. O'Reiley, 88 Mo. 418; Skinner v. Stouse, 4 Mo. 93; Schneider v. Schneider, 284 Mo. 314.

John S. Crawford and Smith B. Atwood for respondents Horace Crismond and Ivy M. Spratt.

(1) Sarah L. Crismond must, of necessity, have acquired title to the land in question in one of three ways: By adverse possession without color of title; by adverse possession under color of title; or by valid deed of conveyance from Mark Bowling and wife. (a) There is no evidence whatever of an ouster or disseizin of a true owner; hence the title could not have been acquired by means of adverse possession without color of title. 2 C. J. 50, sec. 1; Swope v. Ward, 185 Mo. 316. (b) Adverse possession under color of title imports a claim under an instrument which, in form and substance, is insufficient to convey title, and cannot so convey except it be accompanied by possession for the requisite period. Such is not the case here. 2 C. J. 168, secs. 323, 325; Joplin Brewing Co. v. Payne, 197 Mo. 422; Abeles v. Pillman, 168 S.W. 1180; Hickman v. Link, 97 Mo. 482; Shaffer v. Detie, 191 Mo. 377. (c) The deed of Mark Bowling and wife is sufficient both in form and in substance to convey to Sarah L. Crismond an estate of freehold of some character, unaccompanied by possession. It follows therefore that her title was acquired by virtue of the deed from Mark Bowling and wife. (d) If the freehold thus acquired is limited, the interest of appellants (if any) is likewise limited, since (absent estoppel) it is all they now have, or ever had. (e) Inasmuch as appellants' interest is dependent upon the interests of Sarah L. Crismond (absent estoppel), they are in no position to attack the record chain of title prior to the Bowling deed. (2) A deed which conveys an estate to a grantee and "the heirs of the body" creates a life estate in the first named grantee, with remainder in the heirs named in the deed. Sec. 2267, R. S. 1919; Bank of Brumley v. Windes, 282 S.W. 696. (a) Where the premises of the deed employs simple words of conveyance without specifying the estate, and the habendum creates a specific estate by express or technical words, the express estate created by the latter prevails over the implied estate mentioned in the former. 18 C. J. 333, sec. 329; Utter v. Sidman, 170 Mo. 284; Kane v. Roath, 310 Mo. 684, 276 S.W. 39; Willis v. Robinson, 291 Mo. 650, 237 S.W. 1030; Lott v. Braham, 92 W.Va. 317, 116 S.E. 513. (b) The above rule is aided in this case by evidence that the land in question was a gift with limitations to Sarah L. Crismond. Tennison v. Walker, 190 S.W. 9. (c) The presence of the words "and assigns" does not change the rule. Utter v. Sidman, 170 Mo. 284. (3) The estoppel, if any, upon which appellants must rely must conform to the definition of equitable estoppel by silence, and must contain all of its elements. As applied to the facts in this case, there must be: (a) An actual knowledge of legal rights, i. e., a comprehension of the technical meaning of the words "bodily heirs," (b) A silence accompanied by a duty to speak, i. e., a silence with a purpose to mislead, (c) A justifiable reliance upon such silence, i. e., no knowledge of, or means of knowing the true facts, and (d) resulting injury. 21 C. J. 1119, sec. 122; Com. Trust Co. v. Keck, 283 Mo. 209, 223 S.W. 1057; Pollard v. Ward, 289 Mo. 275, 233 S.W. 14; Grafeman Dairy Co. v. Bank, 290 Mo. 311, 235 S.W. 435; McLain v. Trust Co., 292 Mo. 114, 237 S.W. 506; Vette v. Hackman, 292 Mo. 138, 237 S.W. 802. (4) To be equitably estopped, Ivy M. Spratt must be shown to have had knowledge of her legal rights which she is said to have concealed. Grafeman Dairy Co., v. Bank, 315 Mo. 849; Springfield Security Co. v. Borem, 275 S.W. 566. (a) She is not estopped where there is equal facility for obtaining knowledge of the true facts, especially where, as here, a deed of record imparts such knowledge to appellants. 21 C. J. 1154, sec. 157; Laughlin v. Wells, 283 S.W. 990; Wood v. Oil & Refining Co., 274 S.W. 894; Starr v. Kisner, 219 Mo. 64; Starr v. Bartz, 219 Mo. 47. (b) There is no evidence of a purpose on the part of Mrs. Spratt to mislead. There is positive evidence of her ignorance of her legal rights under the Bowling deed. Ignorance on the part of appellants can avail them nothing, since they stand charged by the public record with such knowledge. (c) It follows that Mrs. Spratt is not estopped to assert her interest free from the encumbrance.

S. J. Jones and John D. Taylor for other respondents.

(1) It must be presumed, nothing to the contrary being shown, that Mrs. Crismond entered into possession under the Bowling deeds, and immediately upon their execution. The defendants Commerce Trust Company et al., had the burden, under their pleading, of overthrowing that presumption. Failing, for the purposes of this suit, the Trust Company et al., claiming as grantees of Mrs. Crismond, cannot now claim that their interests do not relate back to the Bowling deeds. Feller v. Lee, 225 Mo. 319; Lumber Co. v. Chronister, 259 S.W. 1042. (2) There is no evidence of adverse possession between the life tenant and the remaindermen. Her possession was their possession. Nor can a life tenant claim adversely to the remaindermen. Allen v. DeGroodt, 98 Mo. 162; Salmons v. Davis, 29 Mo. 181; Armor v. Frey, 253 Mo. 474. (3) There is no estoppel so far as Paul Crismond is concerned. (4) The deeds created a life estate in Sarah L. Crismond with remainder over to her bodily heirs. (5) The claim that the deed to the southeast quarter of the northeast quarter of Section 26 is void, because of a defective acknowledgment, is without merit. Hauser v. Murray, 256 Mo. 58; Siemers v....