Elsea v. Smith

• Decision Date: 16 February 1918
• Citation: 202 S.W. 1071,273 Mo. 396
• Parties: GEORGE W. ELSEA et al. v. ABRAM J. SMITH et al., Appellants
• Court: Missouri Supreme Court

202 S.W. 1071

273 Mo. 396

GEORGE W. ELSEA et al. v. ABRAM J. SMITH et al., Appellants

Supreme Court of Missouri, Second Division

February 16, 1918

Appeal from Saline Circuit Court. -- Hon Samuel Davis, Judge.

Affirmed.

Duggins & Duggins and Virgil V. Huff for appellants.

(1) The plaintiff, George W. Elsea, was incompetent to testify for his co-plaintiff, American Bible Society, as both had an identical interest in the validity of the deed sought to be established. Sec. 6354, R. S. 1909; Hisaw v. Sigler, 68 Mo. 449; 40 Cyc. 2334; Dumbar v. Meadows, 176 S.W. 1167. (2) The delivery of a deed is essential to its operation as a conveyance, and the grantee must have accepted it. Hall v. Hall, 107 Mo. 107; Wren v Sturgeon, 184 S.W. 1036. (3) The burden of proof of the delivery of a deed is on him who alleges it. 13 Cyc. 730. (4) It is presumed that a deed was not delivered so as to become operative until after the date of its acknowledgment. Fontaine v. Bank, 57 Mo. 561; Barber Asphalt Co v. Field, 174 Mo.App. 11; Gerardi v. Christie, 148 Mo.App. 91; 13 Cyc. 730, 734. (5) Where a deed shows on its face that it is to be executed by two or more grantors who afterwards actually execute it, it is presumed that the deed was not delivered until all the grantors had executed the same. Gilman v. Morris, 13 Mo.App. 115; 13 Cyc. 565; Arthur v. Anderson, 9 S.C. 234; Overman v. Kerr, 17 Iowa 489, 490; Parker v. Parker, 67 Mass. 411. (6) When an instrument has been changed or altered, the presumption is that the alteration was made before or at the time of its execution. Paramore v. Lindsay, 63 Mo. 63; 2 C. J. 1275; Kilpatrick v. Wiley, 197 Mo. 123; Stillwell v. Patton, 108 Mo. 352, 360; Carterville v. Luscombe, 165 Mo.App. 521; Collison v. Norman, 191 S.W. 60. (7) The entire conduct of the parties with reference to the deed before and after its discovery may be taken into consideration in determining when, in fact, the deed was delivered. Miles v. Robertson, 258 Mo. 717; Cook v. Newby, 213 Mo. 471. (8) The execution of a deed will not be presumed until its completion and execution have been established by proof. 13 Cyc. 554; Turner v. Carpenter, 83 Mo. 333, 336; Martindale on Conveyances, sec. 220, p. 201; Tiedeman on Real Property, 812. (9) Although the deed in question was made to Lou E. Elsea and the heirs of her body, with reversion to the heirs of the grantor, and not delivered until after her death, yet the deed would be valid as to the heirs of the body of the first taker named, the description "heirs of the body of Lou E. Elzea" being sufficient to identify Earle N. Elzea as the person intended as grantee under the deed. Papin v. Massey, 27 Mo. 450; Boone v. Moore, 14 Mo. 426; 13 Cyc. 538; Martindale on Conveyances, sec. 67, p. 70; 1 Jones on Conveyances, par. 224, 225, 226. (10) The first provision of the deed, "Provided, however, if the said Lou E. Elzea should die without heirs of her body, said lands shall revert to and become the property of the said Paschal E. Smith, and in case of his (said Paschal E. Smith) death the same shall descend to his heirs," is "dead and out of the case," because that contingency can never happen. Gannon v. Pauk, 200 Mo. 96; Sullivan v. Garesche, 229 Mo. 496; Jones v. Jones 123 S.W. 29. (11) The deed to Earle N. Elsea, the heir of the body of Lou E. Elsea, providing that upon his death without issue the title should revert to the grantor and his heirs, created in Earle N. Elsea an estate in fee simple defeasible upon his death without issue, with reversion to the heirs of Paschal E. Smith. Sec. 2873, R. S. 1909; Yocum v. Siler, 160 Mo. 281; Gannon v. Pauk, 200 Mo. 75; Gannon v. Albright, 183 Mo. 257; Trust Co. v. Curley, 255 Mo. 393, 416; Yocum v. Parker, 130 F. 722; 134 F. 205; Ives v. Bank, 140 Mo.App. 300; Wilkerson v. Boyd, 136 N.C. 46; 4 Kent, 9, 10; Brown v. Tuschoff, 235 Mo. 458. (12) Sec. 2873, R. S. 1909, has been construed to apply to all limitations upon death without issue, whatever the character of the estate following. Gannon v. Albright, 183 Mo. 257; Faust's Admr. v. Birner, 30 Mo. 417; Naylor v. Godman, 109 Mo. 550. (13) The clause of the deed providing that the estate, in the event of the defeasance without heirs, revert to the grantors and his heirs, being in the nature of a condition, reversionary in character and vested, the rule against perpetuities does not apply to the estate vested in the grantor and his heirs thereby. Gray on Rule Against Perpetuities (2 Ed.), par. 41, 304, 311, 312 and 455; Hopkins v. Grimshaw, 165 U.S. 352; Stewart v. Coshow, 238 Mo. 662, 673; 30 Cyc. 1473; Universalist Society v. Boland, 155 Mass. 171; Tobey v. Moore, 130 Mass. 448; Cowell v. Colorado Springs Co., 100 U.S. 55; French v. Old Society in Boston, 106 Mass. 448; Deacon v. Trust Co., 197 S.W. 26. (14) But if the rule against perpetuities should be offended by the above limitation, the effect would be to render the deed void, and leave the estate in the heirs of the grantor. Lockridge v. Mace, 109 Mo. 162; Riley v. Jaeger, 189 S.W. 1168. (15) "An executory devise may be created to take effect as well on a condition that will terminate an estate tail as one that will terminate an estate in fee simple." Gannon v. Pauk, 183 Mo. 265, 273; 16 Cyc. 608, 609; Linn v. Alexander, 59 Pa. 43; 1 Washburn, Real Prop. (6 Ed.), 91; 2 Blackstone Com., 154; 4 Kent Com., sec. 298. (16) Under the statutes of Missouri of 1825 and 1865 abolishing entails, limitations over in default of heirs of the body of the first takers are permitted, and such limitations, being alternate remainders, are outside of the estate tail created in the deed, and in derogation thereof, yet these remainders are not stricken down by the operation of the statute along with the estate tail, but by the uniform decisions of the courts are conserved and enforced as if limited after any other life estate. Farrar v. Christy, 24 Mo. 453, 470; Harbison v. Swan, 58 Mo. 153 (under statute of 1825); Wood v. Kice, 103 Mo. 329; Cox v. Jones, 229 Mo. 53 (under statute 1865, the present statute). It is admitted the rule was otherwise as to such remainders under the statute of 1845 abolishing entails. Brown v. Rogers, 125 Mo. 390. (17) The results of any construction may be taken into consideration in testing the soundness of that construction, and as the purpose of the statute is to abrogate distinctions between estates, and as the construction of the statute not allowing defeasances cutting it down would make a peculiar type of remainder in fee, such construction should be discarded as unsound and out of harmony with the purpose of the statute. 2 Lewis, Sutherland, Stat. Const., 1487-1490; Bowers v. Smith, 111 Mo. 45, 55; Lamar v. Lamar, 128 Mo. 210. (18) The mischiefs to be remedied by the statute are those arising from entails, and not from defeasances and other limitations, and the statute should be confined by contruction within the limits of the obvious purpose of its enactment. 2 Lewis, Sutherland, Stat. Const., 471 et seq.; 4 Kent, 17, 18; Dowdy v. Wamble, 110 Mo. 280; Greeley v. Railway, 123 Mo. 157. (19) Deeds should be so construed as to give effect, if possible, to every word in them, and some effect should be given to the reversionary limitation in the deed at bar. Sims v. Brown, 252 Mo. 58; Perrett v. Bird, 152 N.C. 220.

Roy D. Williams, A. B. Hoy, A. R. James and R. M. Reynolds for respondents.

(1) The finding and judgment of the trial court on a question of fact in a law case in which no instructions are asked or given cannot be reviewed or disturbed by the appellate court, where there is any substantial evidence to sustain it. Coulson v. LaPlant, 196 S.W. 1144; Rausch v. Michel, 192 Mo. 293; Jordan v. Davis, 172 Mo. 599; Lewis v. Muse, 130 Mo.App. 201; Sutter v. Raeder, 149 Mo. 307; Bozarth v. Legion of Honor, 93 Mo.App. 564; Easley v. Elliot, 42 Mo. 289; Wilson v Railroad, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322; Hamilton v. Boggess, 63 Mo. 233; Henry v. Bell, 75 Mo. 194; Harrington v. Minor, 80 Mo. 270; Gaines v. Fender, 82 Mo. 497; Cunningham v. Snow, 82 Mo. 587; Seiferer v. St. Louis, 141 Mo. 586; Swayze v. Bride, 34 Mo.App. 414; O'Howell v. Kirk, 41 Mo.App. 523; Claflin v. Burkhart, 43 Mo.App. 226; Morgan v. Railroad, 51 Mo.App. 523; Hatton v. City of St. Louis, 264 Mo. 634; Scarritt Est. v. Casualty Co., 166 Mo.App. 570; Wilkinson v. Western Union, 163 Mo.App. 148; Pendergast v. Graverman, 166 Mo.App. 33; Strother v. Barrow, 246 Mo. 241; Paxton v. Bonner, 172 Mo.App. 479; Keyser v. Hayes, 190 Mo.App. 380. (2) Every presumption and intendment favor this judgment. No declaration of law or instructions were asked and none were given. If the judgment can be sustained upon any theory, it will be done. Scarritt Estate v. Casualty Co., 166 Mo.App. 570; Rausch v. Michel, 192 Mo. 293. (3) Witness George W. Elsea was a competent witness for his co-plaintiff, American Bible Society. Section 6354, R. S. 1909; Hoyt v. Davis, 30 Mo.App. 309; Steward v. Kirk, 69 Ill. 509; Ely v. Clute, 19 Hun (N.Y.) 332; Story v. Story, 61 S.W. 229 (Ky); Anderson v. Aikens Estate, 157 N.W. 334; 40 Cyc. 2270-c.; Angell v. Hester, 64 Mo. 144; Ray v. Westfall, 183 S.W. 629; Shanklin v. McCracken, 140 Mo. 348; Brown v. Patterson, 224 Mo. 639. (4) The evidence of George W. Elsea being competent for any of his co-parties in this cause, inured to the benefit of all parties, including himself. Ray v. Westfall, 267 Mo. 130; Gunn v. Thurston, 130 Mo. 339; Conrey v. Pratt, 248 Mo. 576. (5) The deed in controversy was delivered to Lou E. Elsea, in her lifetime. In addition to the direct evidence in the record the presumptions in this case favor the delivery of the deed to her. (a) "Where a grantee is in possession of a deed which has been duly executed the presumption arises that it...