Donaldson v. Donaldson

• Decision Date: 22 December 1925
• Docket Number: No. 24954.,24954.
• Citation: 278 S.W. 686
• Parties: DONALDSON et al. v. DONALDSON et al.
• Court: Missouri Supreme Court

278 S.W. 686

DONALDSON et al. v. DONALDSON et al.

No. 24954.

Supreme Court of Missouri, Division No. 1.

December 22, 1925.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

Action by Lyda B. Donaldson and another against Robert T. Donaldson and another. From a decree for plaintiffs, defendants appeal. Reversed and remanded.

Henry J. Libby, of Shelbina, for appellants.

W. L. Hamrick, of Clarence, and Ben Franklin & Son, of Macon, for respondents.

GRAVES, J.

Action to quiet the title to 140 acres of land in Shelby county. The agreed common source of title is James M. Donaldson, who by a warranty deed, being joined therein by his wife, Julyan Donaldson, conveyed at least some interest in the land or its use to their son, Robert T. Donaldson, one of the defendants herein. The other defendant, Iche, claimed no interest in the land, other than being the tenant of Robert T. Donaldson. Robert T. Donaldson later, in the year 1897, made deed of quitclaim (rather peculiar in language and form) to his five children. He was joined therein by his then wife, who was the mother of such children.

The record and the contentions of the parties call for a construction of the two deeds aforesaid. The deed of James M. Donaldson, and wife (omitting the description of the land) reads:

`This indenture made and entered into this 12 day of October, A. D. in the year of our Lord one thousand eight hundred and eighty-five, between James M. Donaldson and Julyan A. Donaldson, his wife, first party, and Robert T. Donaldson second party, all of Shelby county, state of Missouri. Witnesseth:

"That we the said first party for and in consideration of the natural love and affection which we entertain towards our son R. T. Donaldson the second party as well for the further consideration of him returning to us by deed lands that we gave him [here is described a tract of 130 acres in section 22, township 56, range 12]. The said second party now have this day granted, bargained and sold and by these presents do grant, bargain, sell and convey and confirm unto the said second party the following described real estate lying in the county of Shelby and state of Missouri, to wit: [Here is described 140 acres in section 16, township 56, range 12.]

"To have and to hold the same unto the said second party for the sole and exclusive use and benefit of said second party till his death, at the death of the second party the above described real estate shall vest in fee in his children and if he has not children alive then one third of the real estate is to go to his widow and the rest to return back to his parents, the said real estate is not to be liable in any manner for his debts or liabilities the said real estate is not to be subject to the disposal of the said second party only on this express condition that the proceeds of sale of the said real estate shall be vested in other real estate for the same use and benefit as herein mentioned otherwise said sale shall be null and void and we the said first party do hereby covenant with the second party that we are lawfully seized in fee of the above granted premises that the fee from all incumbrances that we have good rite to sell and convey the same unto the said second party for the purposes before expressed and that we will warrant and defend the title to the same against the claim or claims of any and all persons whatsoever.

"In testimony whereof we the first party do hereunto set our hands and seals the day and year first above written, the foregoing land is bound for the support of first party.

                            "James M. Donaldson. [Seal.]
                            "Julyan A. Donaldson. [Seal.]
                

"State of Missouri, County of ______, ss.:

"On this 12th day of October, 1885, before me personally appeared, James M. Donaldson and Julyan A. Donaldson, his wife, to me known to be the persons described in and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed.

"In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in Clarence, the day and year first above written.

                                   A. C. Mallory
                                      "Justice of the Peace
                                   "J. D. Dale, Rec
                  "Filed Oct. 14, 1885, at 4:10 p. m."
                

Said Plaintiffs' Exhibit 2 being in words and figures as follows, to wit:

Plaintiffs' Exhibit 2.

"This ententure, made and entered into this the second day of October in the year of our Lord one thousand eight hundred and ninety-seven between Robert T. Donaldson and Ruth E. Donaldson, his wife parties of the first part, and James S., Wm. M., Lillie A., Enoch E. and Lee O. Donaldson all of the town of Clarence, county of Shelby and state of Missouri, parties of the second part, witnesseth:

"That we the parties of the first part for and consideration of the natural love and affection towards the parties of the second part our bodily heirs as well as for the further consideration seventy ($70) dollars, to us paid, the receipt of which is hereby acknowledged, have this day remised, release and forever quitclaim and do by these presence justly and absolutely remise, release, and forever quitclaim unto the parties of the second part, their heirs and assigns forever, all such right and title as we the parties of the first part have or ought to have in the following described real estate lying in the county of Shelby and state of Missouri to wit: [Same land conveyed by the James M. Donaldson deed, supra, and other lands.] To have and to hold the premises aforesaid unto them the said parties of the second part, their heirs and assigns, to the only use and behalf the said parties of the second part their heirs, and assigns forever, so that neither the parties of the first part or any other person or persons for or in our names and behalf, shall or will hereafter claim or demand any right or title to the premises aforesaid, any part thereof, the aforesaid real estate is to remain undivided until sold or the death of first party each member of the second part is to share equal in the aforesaid real estate, shall be subject to the support of the first party until their death or until it is sold.

"Given under our hand the day and year above written. Robert T. Donaldson. [Seal.]

"Ruth E. Donaldson. [Seal.]

The lands covered by this deed include the land described in the petition of the plaintiffs, and described in the James M. Donaldson deed. Other lands are also included. The construction of these two deeds will largely determine this case. The plaintiffs in this case are the wife and only daughter of Enoch E. Donaldson, one of the grantees in the deed from Robert T. Donaldson. They claim it all by mesne conveyances from the other four children of Robert T. Donaldson, being the four other grantees, in the last-described deed aforesaid. Title is likewise claimed under a sheriff's deed to Lyda B. Donaldson, the wife of Enoch and the mother of the coplaintiff, Lucille.

The details of the evidentiary facts and other deeds will be left to the opinion. It suffices to say that the trial court decreed title in plaintiffs, and defendants have appealed.

I. Our record of submission shows the motion to dismiss was taken with the case, but in making such order we overlooked the previous order made in this case. The motion to dismiss the appeal was filed April 4, 1925. The case has had its ups and downs here. The short transcript was filed by appellants September 14, 1923. On January 13, 1925, the appeal was dismissed for failure to prosecute the appeal. The case was set for hearing on that date. On January 15th a belated stipulation for continuance was filed, asking that the cause be continued to the next term (April term, 1925) of the court. January 16, 1925, the order of dismissal was set aside, and the cause continued as per the stipulation to the April term, 1925.

Then, as said, on April 4, 1925, this motion by respondents to dismiss the appeal was filed, and on April 13, 1925, such motion was sustained. On April 18, 1925, appellants filed a motion to set aside our order sustaining the motion to dismiss the appeal on April 13, 1925, accompaning such motion with proof that the stenographer was unable to get out and deliver to appellants' counsel a transcript of the evidence in the case, until March 14 1925. The cause was set for hearing at the April term, 1925, acid set on the 17th day of April, 1925. Comparing the dates, it will be observed that the appellants had (after getting the transcript of the evidence) only three days in which to prepare, have signed, and filed a bill of exceptions, and to print and serve an abstract of record and brief in the case. Upon this showing the court set aside its order sustaining the motion of April 4, 1925, and continued the case to the October term.

Affidavits of plaintiffs' counsel (on file) show that appellants served them with copy of abstract and brief on March 24, 1925. From this it appears that our order, made in the submission of the case in October, was an oversight. The whole matter had been previously disposed of by the court, and abstract and brief had been served months before the actual hearing.

Our order taking the motion to dismiss appeal, being a mere inadvertence, should be set aside, and it is so ordered. This motion had no standing at the time of submission, and must be disregarded. This brings us to the merits of the case.

II. Proceeding now to the deed from James M. Donaldson and wife to Robert T. Donaldson, the plaintiffs contend that such deed conveyed to Robert T. Donaldson a life estate, with a vested remainder in the children of Robert T. Donaldson at the delivery of the deed, with possession only postponed until the death of Robert T. Donaldson. If the deed created a life estate in Robert T. Donaldson only, then there was a remainder to be disposed of in some manner.

It is not seriously contended by learned counsel for the defendants ...