Franklin v. Cunningham

• Decision Date: 15 March 1905
• Parties: FRANKLIN et al., Appellants, v. CUNNINGHAM et al
• Court: Missouri Supreme Court

86 S.W. 79

187 Mo. 184

FRANKLIN et al., Appellants, v. CUNNINGHAM et al

Supreme Court of Missouri, First Division

March 15, 1905

Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and remanded (with directions).

Ralph Wammack for appellants.

(1) The administrator's deed shows upon its face that it was made from, and attempted to follow, the bond for deed, which formed the basis of the purchase by R. G. Franklin, and hence, under the law, the bond for deed thereby became incorporated in said deed and became a part thereof, and if there is any difference in the two instruments, the provisions of the bond must govern. The administrator's deed should, therefore, have been made to "Missouri E Franklin and the legal heirs of Robert G. Franklin," and for the purpose of this suit should be made to so read. Agan v. Shannon, 103 Mo. 669; Loring v Groomer, 110 Mo. 642; Mitchner v. Holmes, 117 Mo. 208; Brownwell v. Arnold, 60 Mo. 80; Waples v. Jones, 62 Mo. 443; Noell v. Gaines, 68 Mo 653. (2) Robert G. Franklin was the creator of this estate, and he is the man who had inserted in the bond for deed the words, "Missouri E. Franklin and the legal heirs of Robert G. Franklin." He did this while living and in the full possession of his senses, and it will not do to say that he had no purpose when he had inserted in the bond for deed the words "and the legal heirs of Robert G. Franklin," and that after his death the lawyer or clerk did no violence to his intentions when he omitted those words from the granting clause of the administrator's deed. The main purpose in the construction of deeds, as of other contracts, is to effectuate the intention of the parties, and little aid can be derived from precedents or technical rules. 2 Devlin on Deeds, sec. 836; Fanning v. Doan, 128 Mo. 328; Hunter v. Patterson, 142 Mo. 310; Walton v. Drumtra, 152 Mo. 498. (3) If this deed be construed to create an estate in "fee tail," in Missouri E. Franklin, with remainder over to the "legal heirs of Robert G. Franklin," then the statute (sec. 4592, R.S. 1899), converts the same into a life estate in the first taker, and creates an absolute estate in the heirs of Robert G. Franklin. Wood v. Kice, 103 Mo. 329; Farrar v. Christy, 24 Mo. 468; Harrison v. Swan, 58 Mo. 147; Thompson v. Craig, 64 Mo. 312; Hunter v. Patterson, 142 Mo. 310; Bone v. Tyrell, 113 Mo. 175; Reed v. Lane, 122 Mo. 311; Goodman v. Simmons, 113 Mo. 127; Emmerson v. Hughes, 110 Mo. 627; Cross v. Hoch, 149 Mo. 344; Welliver v. Jones, 166 Ill. 80; Moore v. Gary, 149 Ind. 51. (4) If the words, "and the legal heirs of Robert G. Franklin," are to be construed as words of purchase, the estate created would be a joint one in Missouri E. Franklin and the heirs of Robert G. Franklin, and under the statute Mrs. Franklin and all the heirs of Robert G. Franklin would take a fee simple estate in the lands as tenants in common. 6 Ballard's Real Prop., sec. 289; Tindall v. Tindall, 167 Mo. 225; Sutton v. Cassergille, 77 Mo. 397; Keith v. Keith, 80 Mo. 125. (5) In any event limitations cannot be invoked against J. F. Franklin, Daisy Atwood, and Bobbie Franklin (now Whittingill), for the reason that they were within the age accorded to minority by the law for bringing suits at the time the suit was filed. (6) Limitations can not run against Emily Orton for the reason that she was a married woman at the time of the transaction, and so remains to this day. Lindell Real Estate Co. v. Lindell, 142 Mo. 75; Throckmorton v. Pence, 121 Mo. 50. (7) Roberta Scott was married during minority, at approximately the age of fifteen years, and was a married woman at the time the suit was brought. I know that the case of Farish v. Cook, 78 Mo. 212, subsequently followed in the case of Quick v. Rufe, 164 Mo. 408, announces the doctrine that the disability of coverture cannot be added to the disability of minority, and hence I take it as being the law of this State, but in my opinion, and in the opinion of many judges and lawyers, this is a very unjust rule, and ought not to be the law. (8) There can be no question of the fact that Mrs. Shrum is a competent witness as to every transaction in the record, except as to her trade with Franklin Cunningham, and we contend that she is a competent witness even as to that matter for the reason that she is not a party to the record, is not a party in interest, and none of the plaintiffs hold under her. A party to a contract, when the other party is dead, is incompetent under the statute only to testify in his own favor. Ford v. O'Donnell, 40 Mo.App. 63; Angell v. Hester, 64 Mo. 142. The test of competency is the contract or cause of action in issue and on trial, not the fact to which the party is called to testify. Ring v. Jameson, 66 Mo. 225; Mier v. Thieman, 90 Mo. 433; Bank v. Hunt, 25 Mo.App. 170.

Faris & Oliver for respondents.

(1) (a) The abstract of title which showed that the bond for title in question was made by "Wm. M. Darnall to Missouri E. Franklin," no mention being made in said abstract of "the legal heirs of Robert G. Franklin," was a duly certified and proven copy of "Carlton's Abstract," and is decisive of this case. Said abstract, since the destruction by fire of all court records, and public records of land titles of Pemiscot county, has been the sole and only record of titles to land, in said county, prior to December 2, 1882, and it has been made prima facie evidence of such titles and records by legislative acts. Laws 1885, p. 162; Laws 1901, p. 251. (b) The Legislature has the right thus to change the common-law rules of evidence and to establish new rules in derogation thereof. Smith v. United States, 5 Peters 592. (c) This legislative privilege has been repeatedly exercised in our own State, as, by a comparison of the common-law rules of evidence with our Missouri chapter on "Witnesses" will readily appear. Sec. 4652, R.S. 1899; 1 Greenleaf on Evidence (15 Ed.), 327; sec. 4680, R.S. 1899; 1 Greenleaf on Evidence, 372; sec. 4656, R.S. 1899; 1 Greenleaf on Evidence, 334. (d) Upon the loss of said titlebond, the record thereof became the best evidence of its contents, and such record could not have been contradicted orally, or varied by parol evidence. Sec. 3115, R.S. 1899. (2) Nothing can be read into a deed from another deed, except the description of the land sought to be conveyed. Agan v. Shannon, 103 Mo. 669; Tied. Real Prop., sec. 481. (3) All of the defendants, except J. F. Franklin, Daisy Atwood, and Bobbie Whittingill are barred by this statute, regardless of any other question. (a) Respondents themselves took adverse possession of the lands in question about the sixth of November, 1883, and have ever since continuously retained such possession. When this action was begun J. A. Franklin and W. B. Franklin were twenty-seven years and forty-one years old, respectively, and being males could not avail themselves of coverture. (b) Roberta Scott was barred. Farish v. Cook, 78 Mo. 212; Quick v. Rufe, 164 Mo. 408; Gray v. Yates, 67 Mo. 601; Cunningham v. Snow, 82 Mo. 587; Jones v. Thomas, 124 Mo. 586. (c) Emily Orton was almost twenty-four years old when she married. She had not, nor had anyone representing her, or under whom she claims, lived on the lands in controversy here for almost a year before she became covert. Respondents claim title under Missouri E. Franklin, and insist that, upon the facts, Emily Orton is barred.

OPINION

BRACE, P. J.

This is a suit in equity to reform an administrator's deed, and to declare the interest of the parties in the real estate thereby conveyed.

The plaintiffs are the children and only heirs at law of Robert G. Franklin, deceased, and the defendants are the children and only heirs at law of Franklin Cunningham, deceased. The judgment below was for the defendants and the plaintiffs appealed.

The undisputed facts are that some time prior to the year 1874 one Joseph Darnall died, seized and possessed of the following described real estate situate in Pemiscot county, to-wit: "The southeast quarter of the southwest quarter of section twenty-five, and the southwest quarter of the southwest quarter of section twenty-five, containing eighty acres; also the undivided four-sevenths part of the southeast quarter, and the northeast quarter of the southwest quarter of section twenty-five, the northeast quarter of the northwest quarter -- misdescribed as the southeast quarter of the southwest quarter -- the south half of the northeast quarter, and the northwest quarter of the northwest quarter of section number thirty-six, which undivided four-sevenths amounts to two hundred and five and five-sevenths acres, all in township number eighteen north, of range eleven east."

That thereafter letters of administration on the estate of the said Joseph Darnall were granted by the probate court of said county to one William Marsh by whom said real estate, in pursuance of an order of said court duly made, was on the fourteenth day of September, 1874, sold, for the payment of the debts of the said Joseph Darnall, deceased, at public sale to one William M. Darnall, who was the highest and best bidder therefor at and for the price and sum of five hundred dollars, which sale was on the sixth day of October, 1874, duly approved by said court, the terms of the sale being one-third cash, and the remainder in six and twelve months in equal payments, and deed to be made on complete payment of the purchase-money.

Afterwards, on the nineteenth day of October, 1874, the said William M. Darnall bargained and sold said real estate to the said Robert G. Franklin for the sum of eleven hundred dollars, and executed a title-bond for a deed therefor.

Afterwards on the second of August, 1881, the said Robert G. Franklin died intestate,...