Ford v. Unity Church Society
| Decision Date | 27 February 1894 |
| Parties | Ford v. Unity Church Society, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- James P. Thomas, Esq. Special Judge.
Reversed.
M. A Reed and B. R. Vineyard for appellant.
(1) The description is "the one divided fourth part of," etc. The lands had not then been divided, and could not have been divided under the fourth clause of the will of James Cargill, until after the death of his widow. On the face of the deed it is impossible to tell which "divided fourth" is meant, and if plaintiff had been permitted to try, and had tried at the trial to locate it, he could not have done so. The ambiguity is a patent one, appearing on the face of the deed, and not susceptible of removal by parol testimony, and renders the deed absolutely void, for uncertainty of description. Campbell v. Johnson, 44 Mo. 247; Goode v. Goode, 22 Mo. 522; Bell v Dawson, 32 Mo. 79; Holme v. Strautman, 35 Mo. 293; Jennings v. Brizeadine, 44 Mo. 332; Hardy v. Matthews, 38 Mo. 121; Bradshaw v. Bradbury, 64 Mo. 334; King v. Fink, 51 Mo. 209; City of Jefferson v. Whipple, 71 Mo. 519; Fox v. Courtney, 111 Mo. 147; Fued v. Brown, 41 Ark. 495. (2) Where there is a description on the face of the deed which will apply equally to two or more distinct tracts, the deed is void for uncertainty, and can not be helped out by parol testimony. Campbell v. Johnson, 44 Mo. 247; Brandon v. Leddy, 67 Cal. 43; Fuller v. Fellows, 30 Ark. 657. The court should have sustained defendant's objection to the introduction of this Ford deed in evidence, and, being void, should have sustained defendant's demurrer to plaintiff's evidence, and should have given defendant's first instruction to find for it. (3) The deed of Mrs. Cargill to her daughter, Mrs. Ford, reciting a consideration of one dollar and natural love and affection, could only operate as a deed of gift, and not as one of bargain and sale. Peck v. Vandenberg, 30 Cal. 11; Salmon v. Wilson, 41 Cal. 595; Bradley v. Love, 60 Tex. 472; 1 Devlin on Deeds, sec. 11; Hatch v. Straight, 3 Conn. 34. Hence, only the intention of the grantor must be looked for, just the same as that of a testator in a will. Long v. Timms, 107 Mo. 512. (4) Where no valuable consideration passes (and none was shown in this case), a grantor can not be compelled to correct a mistake in a deed, or to carry out an imperfectly executed gift, or to specifically perform a promise, made orally or in writing to make a gift. Brownlee v. Fenwick, 103 Mo. 420; Anderson v. Scott, 94 Mo. 637; Dougherty v. Harsel, 91 Mo. 161; Goode v. Goode, 22 Mo. 518; Sturgis v. Work, 22 N.E. 996; Funk v. Davis, 103 Ind. 281; Sherwood v. Sherwood, 45 Wis. 357; Young v. Young, 80 N.Y. 437. (5) The record did not give constructive notice of deeds outside of the chain of title. The registry laws are intended for the protection of subsequent not prior purchasers and creditors. Dodd v. Williams, 3 Mo.App. 278; Crockett v. Maguire, 10 Mo. 34; Odle v. Odle, 73 Mo. 289; Bates v. Norcross, 14 Pick. 231; Jones v. Richardson, 10 Met. 493; Co. v. Maltby, 8 Paige, 361; Stuyvesant v. Hall, 2 Barb. Ch. 158; Calder v. Chapman, 52 Pa. St. 359; Burke v. Beveridge, 15 Minn. 205; U. S. v. Railroad, 12 Wall. 365; Jackson v. Bradford, 4 Wend. 619.
James A. Plotner, Hall & Pike and Joseph Morton for respondent.
(1) The description in the deed from Nancy G. Cargill to Abby N. Ford is certain and definite. The rule for construing deeds is: 2 Devlin on Deeds, sec. 850. In applying this rule it has been held that "where one part of the description is false and impossible, but by rejecting that a perfect description remains, that part should be rejected and the deed held good and effectual." 2 Wait's Actions and Defenses, 503; Tubbs v. Gatewood, 26 Ark. 128; Anderson v. Baughman, 7 Mich. 69; Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopiano, 48 Mo. 194. (2) The description in the deed then reads, "One-fourth part of," etc., and this means one undivided fourth part. If this be correct the deed is not open to explanation; its terms are plain and have a settled construction and meaning, and this meaning must prevail, and can not be changed by parol evidence. Jones v. Shepley, 90 Mo. 307; Koehring v. Muemminghoff, 61 Mo. 403; Murdock v. Ganahl, 47 Mo. 135; County v. Wood, 84 Mo. 489; Loveplace v. Seal, 36 Mo. 317; State ex rel. v. Hoshaw, 98 Mo. 359; Morgan v. Porter, 103 Mo. 135; Smith v. Fitzgerald, 9 A. 604; Rowland v. McCoun, 26 P. 853; Evans v. Duncan, 48 N.W. 922; Osgood v. Bander, 47 N.W. 1001. (3) The intention of the parties must be derived from the deed itself. Long v. Timms 107 Mo. 512; 1 Greenleaf on Evidence, sec. 287. (4) The interest in the lands acquired by Nancy G. Cargill by the deed from Joseph C. Hull, trustee of John C. Cargill, in December, 1865, passed to Abby N. Ford under the deed of Nancy G. Cargill to said Ford, of September 5, 1863, as effectually as if she had possessed said interest on said last mentioned date. (5) The deed from Nancy G. Cargill to Abby N. Ford was duly recorded in the office of the recorder of deeds for Buchanan county, gave constructive notice to all subsequent purchasers, and is binding upon the defendant.
This is an action of ejectment for the recovery of the south eight feet of lot 6, all of lot 7, and the north two feet of lot 8, all in block 23, in Smith's addition to the city of St. Joseph. The answer admits possession and denied each and every other allegation in plaintiff's petition. The case was tried to a jury and resulted in a verdict and judgment for the plaintiff.
At the trial plaintiff introduced a patent from the United States to Fred W. Smith, a plat of Smith's addition to the city of St. Joseph and a deed from Smith to James Cargill for lots 3, 4, 5, 6, 7 and 8, all in block 23, of said addition, of which the land sued for is a part.
James Cargill, who is the common source of title, died in 1858, leaving a widow, Nancy G. Cargill, sometimes called Agnes G. Cargill, and four children, George W. Cargill, John C. Cargill, Agnes Owen and Abby N. Ford. James Cargill left a will which was duly admitted to probate in the probate court of Buchanan county by the second clause of which he gave all his estate real and personal to his wife for life, or until she should marry again. Mrs. Cargill, who survived her husband, lived until 1877, when she died without having married again. By the third clause of James Cargill's will, he gave, at the death of his wife, his home place, describing it, to his son, George Cargill, whom he appointed as his executor. By the fourth clause of his will, it was provided that at the death of his wife, his executor should take charge of all his property, real, personal and mixed, and after setting aside said home place to his son George, he should select three disinterested persons to divide all the remainder into four equal parts, and to each of his four children he devised and bequeathed one of these parts thus to be divided.
In 1879, after the death of Mrs. Cargill, the executor selected three persons, who made division of the lands, of which James Cargill died seized, into four parts, and assigned one of these parts to each of the children named in the will, or to their assigns. The report of these commissioners, is too long to be inserted in this statement. The lots sued for appear in that part which was assigned to John Cargill and his assign, the Real Estate Loan Company, through which defendant's chain of title runs, being named the assignee of this particular portion.
Prior to this division, and prior to the death of his mother, even as early as 1860, John C. Cargill, in conjunction with his wife, Sarah L. Cargill, conveyed by deed of trust his interest in all the real estate which his father owned at his death, to Joseph C. Hull, trustee, to secure the payment of certain debts in said deed of trust described. Having made default, the trustee, Hull, in 1865 sold and conveyed, under the power conferred by said deed of trust, all the interest of John Cargill in said real estate to his mother, Agnes or Nancy G. Cargill.
In 1863, by a deed dated September 5 of that year, Mrs. Cargill, in consideration of one dollar and natural love and affection, made a deed containing covenants of warranty, to her daughter, Abby N. Ford, purporting to convey to her "the one divided fourth part" of certain described real estate, including said lots 3, 4, 5, 6, 7 and 8, of which the lots sued for are a part. To the introduction of this deed in evidence by plaintiff, the defendant objected because it was incompetent and irrelevant, because the deed was void, and ineffectual to pass title to any real estate, and because no real estate was described therein. But the court overruled said objection, and the defendant saved its exceptions. In fact, defendant objected to the introduction of every instrument, except the patent, the plat and defendant's original answer, read in evidence by plaintiff, on the grounds, among others, that such instruments were irrelevant and incompetent, and saved exceptions to the action of the court in overruling defendant's objections thus made.
After introducing a deed from Mrs. Abby N. Ford to the plaintiff, who is Mrs. Ford's son, and the admission by defendant to the effect that at the death of her father Abby N. Ford was a married woman, and that she continued to be such until February, 1890, when her husband, Erastus D....
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