Frame v. Humphreys

• Decision Date: 14 May 1901
• Court: Missouri Supreme Court
• Parties: FRAME v. HUMPHREYS.

64 S.W. 116

164 Mo. 336

FRAME v. HUMPHREYS.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

REMAINDER — DESCENTS — DEEDS — LAW APPLICABLE.

1. Rev. St. 1835, p. 119, § 5, provided that any person who would by common law become seised of a fee tail should only take a life estate, and the remainder should pass in fee simple absolute to the person to whom the estate would pass by the rules of the common law on the death of the grantee in tail. Held, that under a deed to a grantee and the heirs of her body the grantee took a life estate, and her eldest son then in being acquired the remainder in fee simple.

2. A conveyance is to be governed by the law in force at the time of its execution.

Appeal from circuit court, Grundy county; H. G. Orton, Special Judge.

Action by John M. Frame against Benjamin Humphreys. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Jas. M. Frame and J. S. Parker, for appellant. A. H. Burkeholder and O. G. Bain, for respondent.

BRACE, P. J.

This is an action in ejectment, in which, from a judgment of the circuit court of Grundy county in favor of the plaintiff for an undivided two-tenths of the real estate claimed in his petition, both parties appeal. There was no dispute about the facts. The case was tried by the court without a jury. Upon the documentary evidence and an agreed statement of facts, Jewett Norris is the common source of title. The premises in controversy are a part of the land conveyed by deed of said Norris and wife, as follows: "This indenture, made and entered into this 16th day of September, 1843, by and between Jewett Norris and Sarah, his wife, of Grundy county, Missouri, of the first part, and Mary Ann Walker, of the same place, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of $1,200.00 to the said party of the first part in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, to the said party of the second part and the heirs of her body (and to Sarah B. Allen, if fully understood and agreed upon, shall be considered, to all intents and purposes, in law and in equity, so far as this deed is concerned, an heir of the body of the said Mary Ann Walker) a certain tract or parcel of land, lying and being in the county of Grundy aforesaid, and described as follows, to wit: One hundred and twenty rods of the north end of the east half of the northeast quarter of section eight (8) in range twenty-four (24) of township sixty-one (61) north of the base line, and west of the fifth principal meridian. Likewise, one hundred and twenty rods of the north side of the northwest quarter and one hundred and twenty rods of the north end of the west half of the northeast quarter of section number nine (9) in range twenty-four (24) of township sixty-one (61), containing by estimation 240 acres of land, with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and all the estate, right, and title, interest, claims, and demands whatsoever of the party of the first part in and to the said lands and premises, and every part and parcel thereof. To have and to hold the said land and premises above mentioned, and every part and parcel thereof, with the appurtenances, unto the said party of the second part and her heirs and assigns as aforesaid, to the only proper use and behoof of the said party of the second part, her heirs as aforesaid and assigns, forever. And the said party of the first part, for himself, his heirs, executors, and administrators, and all and every other person, will warrant and forever defend to the said party of the second part, her heirs and assigns. Jewett Norris. Sarah Norris." The questions in the case turn upon the construction of this deed. At the time it was made, the said Mary Ann Walker was the wife of Thomas Walker, by whom she then had 14 living children; and Thomas Walker had one other child by a former wife, who was the Sarah P. Allen mentioned in the deed. Afterwards, on the 24th of March, 1846, the said Mary Ann and Thomas Walker executed a deed of trust on the premises, of that date, to secure an indebtedness to Grundy county, which was afterwards duly foreclosed, and the premises purchased by and duly conveyed to John B. McDonald by deed dated February 8, 1848. Afterwards, on the 6th day of January, 1854, the said Mary Ann and Thomas Walker, by their quitclaim deed of that date, duly executed, conveyed all their interest in the premises to said McDonald; and on the 14th of March, 1855, 2 of the said 14 children having in the meantime died without issue, the remaining 12, viz. William Walker, Martha Walker, Yancy Walker, Lafayette Walker, Alonzo Walker, Thomas Walker, Charles Walker, John D. Walker, Jane P. Hughes, Elizabeth D. Benson, Mary A. Runyan, and Frances Walker, by their quitclaim deed of that date, duly executed, also conveyed all their interest in the premises to the said McDonald. The defendants thereafter, by mesne conveyances, acquired the title of the said McDonald; and since that date he and his mesne grantors have been in the continuous, peaceable, and uninterrupted possession of the premises, claiming title, as McDonald and his grantors had been prior thereto, from the date of the Norris deed. On the 27th of December, 1888, the said Mary Ann Walker died. Prior to her death 5 of her 14 children aforesaid had also died, viz. John D. Walker, Alonzo Walker, Elizabeth D. Benson, Yancy Walker, and Charles Walker. The other 7 survived her. Yancy Walker and Charles Walker died without issue. John D. Walker, who was the oldest son of the said Mary Ann, died leaving 2 children, — Porter Walker and Serena Graves, — who survived their grandmother. Elizabeth D. Benson died leaving 3 children, — Edward Benson, Ruth Shanklin, and Beatrice Dunlap, — who survived their grandmother. And Alonzo Walker died leaving 1 child, Dele Walker, who survived his grandmother. On the 13th day of October, 1898, the said Edward Benson, Ruth Shanklin, and Beatrice Dunlap, by their quitclaim deed of that date, conveyed all their interest in the premises to Aaron Oldfather; and on the 26th day of November, 1898, the said Porter Walker and Serena Graves, by their quitclaim deed of that date, conveyed all their interest in the premises to the said Aaron Oldfather, who on the 7th day of December, 1898, by his quitclaim deed of that date, conveyed the premises to the plaintiff, and this is the chain of title under which he claims. It was further agreed "that it has always been fully understood and agreed, from the making of said deed by Norris, between the parties thereto, including Thomas Walker, father of said Sarah B. Allen and the children of Mary Ann Walker by him, that Sarah B. Allen's father had received all the estate which she had inherited from her mother, and that she was for that reason named in said deed as a grantee, and that the provisions and conditions in the granting clause of said deed with reference to Sarah B. Allen, whereby she was to be considered...