Fanning v. Doan

• Decision Date: 14 May 1895
• Citation: 30 S.W. 1032,128 Mo. 323
• Parties: Fanning, Appellant, v. Doan
• Court: Missouri Supreme Court

30 S.W. 1032

128 Mo. 323

Fanning, Appellant, v. Doan

Supreme Court of Missouri, First Division

May 14, 1895

Appeal from Grundy Circuit Court -- Hon. Paris C. Stepp, Judge.

Reversed and remanded.

Kelso & Schooler and A. H. Burkeholder for appellant.

(1) The deed from Benajah Doan to Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever, immediately vested the entire estate conveyed, equally in respondent and her children by John Doan. Hamilton v. Pitcher, 53 Mo 336; Allen v. Claybrook, 58 Mo. 124; Rines v Mansfield, 96 Mo. 399; Bodine's Adm'r v Arthur, 91 Ky. 53; Tinder v. Tinder, 131 Ind. 381. (2) Our laws and courts favor vested estates and encourage alienation, and to hold that the deed from Benajah Doan created a fee tail special would be against the manifest intention of the grantor and out of harmony with the spirit and genius of our laws. Godman v. Simmons, 113 Mo. 130, and authorities cited. (3) The words "her heirs by John Doan" were not used in their legal or technical sense. It would be against the manifest intention of the grantor to construe them as an expression equivalent to procreative words. Respondent had no heirs. These words mean her children by John Doan. Cornelius v. Smith, 55 Mo. 533; Waddell v. Waddell, 99 Mo. 342; Reed v. Lane, 122 Mo. 311; Rines v. Mansfield, 96 Mo. 399. (4) Respondent construed the deeds from Benajah Doan for herself, and acted on it. And the court will not be at liberty to disregard her construction. Goodyear v. Carey, 4 Blatchf. (C. C.), 271; Gaslight Co. v. St. Louis, 46 Mo. 130; Jones v. Delassus, 84 Mo. 541.

Harber & Knight and O. G. Bain for respondent.

The grant of Benajah Doan's deed, March 5, 1878, "unto the said Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever," created an estate tail. And this estate, the statutes of this state, section 8838, 1889, converted, as soon as created, into a life estate, in Sarah A. Doan, remainder in fee to her children by John Doan. Clarkson v. Clarkson, 125 Mo. 381; Reed v. Lane, 122 Mo. 311; Godman v. Simmons, 113 Mo. 122; Bone v. Tyrrell, 113 Mo. 175; Emmerson v. Hughes, 110 Mo. 627; Lelandorf v. Cope, 122 Ill. 317; Tiedeman on Real Property, ch. 4, secs. 44-52.

Brace P. J. Barclay, J., dissents.

OPINION

Brace, P. J.

This is an appeal from the judgment of the circuit court of Grundy county sustaining a demurrer to plaintiff's petition. The substantial averments of the petition are, that in the year 1861 the defendant, Sarah A. Doan, who was then a widow having children by two former marriages then and still living, and one John Doan intermarried and lived together as husband and wife on the farm of the said John in Grundy county until the death of the said John. That there was born to them of said marriage four children, John, Daniel, Deborah and Reeves S. That a short time before the death of the said John, Sr., he, by general warranty deed, in which his said wife joined, conveyed his said real estate to his brother, Benajah Doan, for the expressed consideration of $ 10,000, but that in truth and fact no consideration whatever was paid for said deed. That the title to said land was thus placed in the said Benajah to be by him held in trust for the use and benefit of the said John, Sr., and his wife and his said children and heirs by her. That on the sixth of November, 1876, the said John Doan, Sr., died, leaving the said Sarah A., his widow, and her said children by him, surviving. That on the fifth of March, 1878, the said Benajah Doan in discharge of said trust duly executed, acknowledged and delivered a deed to said real estate as follows, to wit:

"Know all men by these presents, that I, Benajah Doan, of the county of Muskingum, in the state of Ohio, for and in consideration of the sum of eight thousand ($ 8,000) dollars to me in hand paid by Sarah A. Doan and her heirs per John Doan, of the county of Grundy, state of Missouri, the receipt whereof I do hereby acknowledge, have remised, released, and forever quitclaimed, and by these presents do remise, release, and quitclaim unto the said Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever, the following described premises situate in the county of Grundy, and state of Missouri, to wit:" (Here follows a description of the land.)

That afterward, in the month of July in the year 1881, the said Deborah, daughter of the said John and Sarah Doan, intermarried with the plaintiff, and in November, 1882, thereafter, died intestate leaving as her sole heir her son, John H. Fanning, born of said marriage. That afterward, to wit, on the third day of August, 1883, the said John H. Fanning also departed this life intestate, leaving the plaintiff, his father, his only heir at law, and as such entitled to the one undivided fifth part of said land. That afterward, to wit, on the first day of January, 1884, the defendant, and the said John Doan, Jr., Daniel Doan and Reeves S. Doan, took exclusive possession of said land, sold and conveyed about fifty acres of the same to one Eli Hotchkiss, and divided the remainder, about six hundred and thirty acres, among themselves, by parol partition, taking possession of the lands so set off to themselves respectively and afterward making deeds to each other therefor; that by such division certain of said lands, described in the petition and containing one hundred and ninety-four acres, were thus set off and conveyed to the defendant who took and now holds exclusive possession thereof against the plaintiff, wherefore he prays for judgment for the recovery of the possession of the one undivided fifth part of the premises so held by the defendant.

Plaintiff contends that, by the granting clause in the deed from Benajah Doan "to Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever," the title in fee simple was vested in the said Sarah A. Doan and her said children by John Doan. The defendant contends that by said deed the title to said real estate was vested in the said Sarah A. Doan in the fee tail, which estate was by the statutes of this state, eo instanti with its creation, converted into an estate for life in the said Sarah, remainder in fee to her said children by John Doan, and that no cause of action for the recovery of their interest in the lands exists in those children or their heirs against the said Sarah, during her life, and consequently that the demurrer was properly sustained.

The contention of the defendant and the ruling of the court are certainly correct if the estate conveyed by the deed was only an estate in fee tail. R. S. 1889, sec. 8836; G. S. 1865 chap. 108, sec. 4, p. 442; Clarkson v. Clarkson, 125 Mo. 381, 28 S.W. 446; Reed v. Lane, 122 Mo. 311, 26 S.W. 957; Bone v. Tyrrell, 113 Mo. 175, 20 S.W. 796. So that the only question for determination is whether the estate conveyed was in fee simple or in fee tail. It may further be conceded that if the grant had stopped with the words "to Sarah A. Doan and her heirs by John Doan" the defendant's contention could be sustained on the authority of Reed v. Lane, supra; but the grant did not stop...