Frame v. Humphreys

• Decision Date: 29 June 1901
• Citation: 64 S.W. 116,164 Mo. 336
• Parties: FRAME v. HUMPHREYS, Appellant
• Court: Missouri Supreme Court

64 S.W. 116

164 Mo. 336

FRAME v. HUMPHREYS, Appellant

Supreme Court of Missouri, First Division

June 29, 1901

Appeal from Grundy Circuit Court. -- Hon. H. G. Orton, Special Judge.

Reversed.

James M. Frame and Joseph S. Parker for plaintiff-appellant.

(1) The deed to Mary Ann Walker and the heirs of her body was such a conveyance as at common law created a fee tail general. 2 Sharswood's Blackstone, p. 214; Clarkson v Clarkson, 125 Mo. 381; 1 Washburn on Real Prop., 253; Reed v. Lane, 122 Mo. 311; Farrar v Christy, 24 Mo. 453; Bone v. Tyrrell, 113 Mo 175; Rozier v. Graham, 146 Mo. 352; Burris v. Page, 12 Mo. 232; Emmerson v. Hughes, 110 Mo. 631. (2) The statute in force when this deed was executed, destroyed the fee tail in Mary Ann Walker and instead thereof gave her a life estate only and a remainder in fee simple absolute to the person to whom the estate tail would first pass on the death of the first donee in tail, according to the course of the common law by virtue of the gift, grant or devise. R. S. 1834, sec. 5, p. 118; Burris v. Page, 12 Mo. 232; Farrar v. Christy, 24 Mo. 453. (3) According to the common law, the title in fee simple absolute, to the premises in controversy, first passed to John D. Walker, the eldest son of the said Mary Ann Walker, upon her death if he survived her. 1 Washburn (3 Ed.), sec. 53, chap. 4; Tiedeman on Real Property, 666; Burris v. Page, 12 Mo. 359; Rozier v. Graham, 146 Mo. 352; 2 Cruise Digest (1856), p. 152, sec. 17; Dimbitz on Land Titles, part 2, chap. 4, sec. 29, p. 212. (4) But the eldest son, John D., having died before his mother, Mary Ann Walker, leaving a son Porter Walker, the said Porter became, through his deceased father, the heir of the said Mary Ann, his grandmother, for the expression "heirs of the body" means lawful issue, children, and through them grandchildren in direct line. Emmerson v. Hughes, 110 Mo. 631; 3 Washburn on Real Prop. (3 Ed.), sec. 7, chap. 1; Rozier v. Graham, 146 Mo. 352; 2 Cruise Digest (1856), p. 163, sec. 21. (5) The deeds made by John D. Walker and Elizabeth Benson in 1855 did not pass any interest in these premises to defendant as neither of them survived their mother, Mary Ann Walker, and the deeds to plaintiff by the children of the said John D. and Elizabeth who survived their grandmother, Mary Ann Walker, pass to plaintiff all of the interest they would have taken in the premises in controversy had they survived her. Emmerson v. Hughes, 110 Mo. 631. (6) Where the words of a statute are plain they must be strictly followed. The correct rule of construction is to construe a statute according to its grammatical and natural sense, unless the context shows plainly that a different sense was intended. Potter's Dwarris on Statutes and Constitutions, pp. 204, 196, 143, 126; 23 Am. and Eng. Ency. Law, pp. 298, 305; Rosenbolt v. Herman, 70 Mo. 451; Hicks v. Jameson, 10 Mo. 38; Hamilton v. St. Louis Co. Court, 15 Mo. 201; Murphy and Glover Test Oath Cases, 41 Mo. 374; Fry v. Railroad, 73 Ill. 402.

O. G. Bain and A. H. Burkeholder for defendant-appellant.

(1) The doctrine of primogeniture, insisted on by respondent, is not the law of this State. Rozier v. Graham, 146 Mo. 360. (2) The deed from Jewett Norris to Mary Ann Walker either vested the fee in her, or in her and her children and Sarah B. Allen jointly, as tenants in common. 1 Wash. (5 Ed.), p. 104, sec. 22; 1 Cooley's Bla. (3 Ed.), bk. 2, pp. 109-114; Fanning v. Doan, 128 Mo. 328; Waddell v. Waddell, 99 Mo. 338; Green v. Sutton, 50 Mo. 192; Rines v. Mansfield, 96 Mo. 399; Gathwright v. Callaway Co., 10 Mo. 664. (3) Said deed under the rule in Shelley's case, in force at the time the deed was made, conveyed the fee in the land to Mary Ann Walker, the grantee. Riggins v. McClellan, 28 Mo. 23; Tesson v. Newman, 62 Mo. 198; Muldrow v. White, 67 Mo. 471; 2 Wash. (5 Ed.), p. 600, sec. 4. (4) Said deed was construed by the parties to it as vesting the fee in Mary Ann Walker, the grantee. Patterson v. Camden, 25 Mo. 13; St. Louis Gas Light Co. v. St. Louis, 46 Mo. 121; Jones v. Delassus, 84 Mo. 545.

OPINION

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 is a part of the land conveyed by deed of said Norris and wife, as follows:

"This indenture made and entered into this sixteenth 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 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 off the north end of the east half of the northeast quarter of section eight in range twenty-four of township sixty-one north of the base line and west of the fifth principal meridian. Likewise one hundred and twenty rods off the north side of the northwest quarter and one hundred and twenty rods off the north end of the west half of the northeast quarter of section number nine in range twenty-four of township sixty-one, containing by estimation 240 acres of land, with all and singular the hereditaments and appurtenances thereunto belonging or in anywise 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."

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 fourteen 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 twenty-fourth 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 sixth 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 fourteenth of March, 1855, two of the said fourteen children having in the meantime died without issue, the remaining twelve, 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 mean 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 twenty-seventh of December, 1888, the said Mary Ann Walker died. Prior to her death five of her fourteen children aforesaid had also died, viz., John D. Walker, Alonzo Walker, Elizabeth D. Benson, Yancy Walker and Charles Walker. The other seven 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 two children, Porter Walker and Lavena Graves, who survived their grandmother. Elizabeth D. Benson died leaving three children, Edward Benson, Ruth Shanklin and Beatrice Dunlap, who survived their grandmother, and Alonzo Walker died leaving one child, Dele Walker, who survived his grandmother.

On the thirteenth 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 twenty-sixth 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 seventh 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...