Davidson v. Manson

• Decision Date: 08 December 1898
• Citation: 146 Mo. 608,48 S.W. 635
• Parties: DAVIDSON et al. v. MANSON et al.
• Court: Missouri Supreme Court

48 S.W. 635

146 Mo. 608

DAVIDSON et al. v. MANSON et al.

Supreme Court of Missouri. Division No. 1.

December 8, 1898.

DEED — ESTATE CONVEYED — CONTRACT AS EVIDENCE.

1. A deed made by D. in contemplation of a permanent separation between him and his wife, C., conveys only a life estate to her, the granting clause being to "C., her heirs and assigns," the habendum being, "To have and to hold the above * * * premises * * * to the said C., her heirs and assigns, in fee simple, her natural life, to her own proper use and behoof," and the covenant being that the grantor would, "during her natural life, warrant and defend the title thereof to said C., her heirs and assigns"; and the deed being printed, except there was written, besides the consideration, the names of the parties, description of the property, and the name of the county and state, the words "her natural life," and "during her natural life."

2. The words of a contract which provide for conveyance by a husband to his wife of a life estate, with remainder to her children, cannot be considered in connection with a deed subsequently made by him conveying only a life estate to her, in a suit based on the deed on the theory that it gives her fee or a remainder, and in which there is no allegation of fraud or mistake, or prayer for reformation.

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Suit by A. C. Davidson and others against Laura L. Manson and others. Decree for plaintiffs, and defendants Mary F. Bunnell and Martha Mayhew appeal. Reversed.

Jos. French, Jos. Cravens, and O. L. Cravens, for appellants. R. H. Landrum and Henry Brumback, for respondents.

WILLIAMS, J.

This is a suit in partition. Andrew J. Davidson, in the year 1866, was the owner in fee of the land which is the subject-matter of the action. All of the parties claim under him. He and his wife, Charlotte B. Davidson, were not living together at that time, but they had not been divorced. The rights of the parties to the suit depend upon the effect to be ascribed to the following deed, made by him to his said wife: "Know all men by these presents that I, Andrew J. Davidson, of the county of Lawrence and state of Missouri, for and in consideration of the sum of five ($5.00) dollars, received to my full satisfaction, of Charlotte B. Davidson, of the county of Lawrence and state of Missouri, the receipt whereof is hereby acknowledged, do give, grant, bargain, sell, and convey unto the said Charlotte B. Davidson and her heirs and assigns the following described lot, tract, or parcel of land, viz.: The east half of the southeast quarter of section fifteen (15), in township twenty-seven (27), of range twenty-seven (27), containing eighty (80) acres, more or less. To have and to hold the above-granted and bargained premises, with the appurtenances thereof, to the said Charlotte B. Davidson, her heirs and assigns, in fee simple, her natural life, to her own proper use and behoof. And further, I, the said A. J. Davidson, do covenant to and with the said Charlotte B. Davidson that at and until the ensealing of these presents, I was well seised of the above granted and bargained premises as a good and indefeasible estate in fee simple: that the same are free from all incumbrance, and that I will, during her natural life, warrant and defend the title thereof to the said Charlotte B. Davidson, her heirs and assigns against all claims and demands whatever. In testimony whereof, we have hereunto set our hand and seal this, the 19th day of September, in the year of our Lord one thousand eight hundred and sixty-six. Andrew J. Davidson. [Seal.]" This deed was acknowledged on the 22d of September, 1866, and filed for record on the 31st of December following. A printed form was used, and the only part in writing is the consideration named (five dollars) the names of the parties, description of the property, name of the county and state, and the expression "her natural life," where it appears therein. Davidson and his wife had four children, three of whom are plaintiffs herein. The other — a daughter — is dead, and her heirs are made defendants, but there is no conflict between these defendants and the plaintiffs. Said children and grandchildren claim the equitable title to the land as tenants in common under the above-mentioned deed, and ask partition thereof. Said deed was made in contemplation of a permanent separation between Davidson and his wife, and in 1867 they were divorced. He subsequently married again. Defendants Mary F. Bunnell and Martha Mayhew, who are appellants here, are children of his second marriage. His divorced wife, the mother of plaintiffs, was also married to one Vaughn, but no children were born of this marriage. Davidson, on the 31st of May, 1894, made a warranty deed purporting to convey the land to his daughters by the second marriage, Mary F. Bunnell and Martha Mayhew. They are made defendants in this suit, plaintiffs alleging that they claim some interest in the property, the nature of which plaintiffs were unable to state. These two defendants answered, charging that the deed to Charlotte B. Davidson, through which their co-defendants as well as plaintiffs claim title, only conveyed to her an estate for her life, and that at the time this suit was brought, she being dead, said defendants Mary F. Bunnell and Martha Mayhew were the owners of the land under the deed to them of May 31, 1894. They prayed that the court declare them to be the owners of the land described in the deed, and that judgment be rendered in their favor for the possession thereof, and for all proper relief. Their answer also contained a second count, being a cross action in ejectment against plaintiffs, and having the usual averments to be found in a petition in an ejectment suit. Upon plaintiffs' motion, this count of the answer was stricken out. It is proper to state here that there is embraced in the present suit for partition other land than that included in the deed under discussion, and there seems to be no dispute that such other land belongs to the heirs of Charlotte B. Davidson, deceased, and that they are entitled to have the same partitioned. The answer of the grandchildren of Charlotte B., who were made defendants, admitted plaintiffs' title, and alleged that said defendants were the equitable owners of an undivided one-fourth of the land under the deed of September 19th, supra, asked that the legal title be decreed to them and plaintiffs, and joined with plaintiffs in their prayer for partition. Plaintiffs, upon the trial, introduced the deed from Andrew J. Davidson to Charlotte B., his wife, dated September 19, 1866, hereinbefore copied; proved that she died in possession of the land in 1895, also the relationship of the parties as has been detailed; and then called as a witness J. D. Allen, a brother of the wife. He testified that he wrote the deed. He was further permitted, over appellants' objection, to state that, in addition to the deed, there was a written contract between the parties. After some evidence that this could not be found among the papers of Mrs. Davidson, the witness stated his recollection of its contents, appellants still objecting thereto. He said: "The contract was about this way: She was to have this eighty, and to have possession of it and benefit her natural life, and at her death it was to go then to her heirs, and, in addition, what he had on the west was to go to his heirs." The witness was asked: "You drew up the contract, and then you undertook to put the same thing in the deed? A. Not exactly. My notion was they would marry again,...