Garrett v. Wiltse
| Decision Date | 06 December 1913 |
| Citation | 161 S.W. 694,252 Mo. 699 |
| Parties | ASHTON W. GARRETT et al. v. R. N. WILTSE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.
Reversed and remanded (with directions).
Eugene Silverman and Charles F. Strop for appellant.
(1) The use of the word "heirs" in the premises of the deed carries no special significance and in nowise militates against the well-settled rule that wherever such words are used they are intended and presumed to be intended to be words of limitation and not words of purchase. It is very appropriate that these words should appear in the premises or granting clause of the deed. 3 Washburn on Real Property (5 Ed.), par. 6. (2) The term "heir" is a legal term and is used in a legal sense with a fixed meaning. The word has a technical signification and when unexplained and uncontrolled by the context must be interpreted according to its technical sense. 21 Cyc. 418, sec. 1. (3) The word "heir" in its natural signification is a word of limitation, and is not to be taken nor construed to be used by the grantor as a word of purchase, but is to be presumed to be used as a word of limitation unless a contrary intention appears. But unless there be other controlling words clearly showing that a contrary meaning was intended by its use, the merely presumed intention will not control that significance of the word and it will not be treated as a word of purchase unless the intent to so use it is manifest. 21 Cyc. 418, 423, 424, 425, 426. (4) If it be conceded, which it is not, that an ambiguity arises in the granting part of the deed it then necessarily follows that such ambiguity can be explained or made plain by the habendum. The habendum is clear and carries full explanation to the entire deed itself. The use of the habendum in construing the deed is well recognized in this State. Green v. Sutton, 50 Mo 192; Linville v. Greer, 156 Mo. 397; Utter v Sidman, 170 Mo. 284; Rines v. Mansfield, 96 Mo 399; Warne v. Brown, 102 Pa. St. 347; Meacham v. Blaess, 104 N.W. 579. (5) The real intention of the grantors should be derived by construing the deed from its four corners. Howell v. Sherwood, 242 Mo. 536; McCollock v. Holmes, 111 Mo. 347. (6) Not only under the general rules as laid down in the cases, supra, is it certain that defendant Wiltse holds a fee simple title and that the Whitson deed was sufficient to convey the fee simple title but especial attention is called to the Michigan case, supra, and also to Tygard v. Hartwell, 204 Mo. 200.
Brown, Cell & Myers for respondents.
(1) The court construes the deed under which respondents claim, by its own terms alone, therefore the admissibility of parol testimony is not a question here. Respondents neither contend nor concede that there is an ambiguity in the granting portion of the deed. Respondents claim that that part of the deed designates one grantee by name, and other grantees as a class, calling that class "heirs," but that appellant's contention against the manifest intention of the grantor made it proper, since clear and convincing extrinsic evidence was at hand, to give the court the advantage of a knowledge of the surroundings and of the intention of the grantor. And since the habendum omits the class of grantees and runs only to the grantees designated by name in the granting clause, respondents had the right to introduce parol testimony to show that the grantor did not intend in the habendum any repugnance to the granting clause; and had a right to introduce parol testimony that they, the respondents, were the individuals who made up the class of grantees mentioned in the granting clause. 9 Ency. Ev., 373-377; Balfour v. Canal & Irrigation Co., 109 Cal. 221. (2) It is usual and convenient that parties in a deed be designated by their names, but it is not absolutely necessary, and they may be designated by description alone. Therefore a grant to "heirs," "sons," "daughters," "children," "issue" or "next blood" is sufficiently certain, and is good. Arthur v. Weston, 22 Mo. 380. (3) Plainly the word "heirs" is used in the premises in such way as to preclude any presumption that it is used as a word of limitation. Fanning v. Doan, 128 Mo. 323. (4) The word "heirs" is used in the deed in question in the sense of "children." The two words are construed as interchangeable terms in this State. Chew v. Keller, 100 Mo. 369; Waddell v. Waddell, 99 Mo. 345; Cross v. Hock, 149 Mo. 341; 21 Cyc. 425-426. (5) In the deed under which respondents claim, Laura Alice Garrett and heirs are designated as parties of the second part; the consideration is paid by parties of the second part; the grant is to parties of the second part and their heirs and assigns. Therefore, the word "heirs" is used in the same sense as "children" and is used as a word of description, and hence of purchase, and not of limitation. Hamilton v. Pitcher, 53 Mo. 334; Rines v. Mansfield, 96 Mo. 399; Fanning v. Doan, 128 Mo. 323. (6) If a deed grants title to two parties, the one will not be deprived of his interest by the covenants and warranty running to the other alone; and if the habendum be repugnant to limitations appearing in the premises it will be ineffectual to control, and may be rejected entirely when inconsistent with other clauses of the deed. Hunter v. Patterson, 142 Mo. 320; Utter v. Sidman, 170 Mo. 284. (7) Laura Alice Garrett and her children in esse took as tenants in common. Hamilton v. Pitcher, 53 Mo. 334; Fanning v. Doan, 128 Mo. 323. (8) Richard M. Garrett by joining as the husband of Laura Alice Garrett in the deed to appellant conveyed only his interest under his marital rights. His interest acquired under the laws of descent, through the death of his daughter Annie, remained in him. Sec. 2788, R.S. 1909.
This is a suit under section 650, Revised Statutes 1899, to try and determine title to the west half of the northeast quarter of section 2, township 56, range 34, containing eighty-three acres situate in Buchanan county.
The case is this: All parties claim under William M. Whitson, deceased, the common source of title. In 1893 William conveyed by warranty deed, duly recorded, to his married daughter, Laura Alice Garrett, "and heirs," for a consideration of five dollars. (This deed is the bone of contention and its terms will hereafter appear.) At the date of that conveyance Laura Alice had three children. Eight years afterwards, in March, 1901, Laura Alice and her spouse, Richard M., by warranty deed put of record, conveyed to defendant for a consideration of $ 3500, and put him in possession. At the date of this latter deed another child, Dixie, had been born to her and Richard. This child died prior to suit. Both deeds purport to convey the whole title. In 1908, Laura Alice being yet alive, her said spouse and two of her said children in being when Whitson conveyed to her, and the husband of one now dead, brought this suit to establish an interest in the land.
The court decreed that Laura Alice took title under the Whitson deed as tenant in common with her three children then in being -- one fourth to each. Further, one of said children, a married daughter, having since died and left no children, it was adjudged that defendant stood seized as grantee of Laura Alice of an undivided one-fourth plus an undivided one-thirty-second, the latter coming to Laura Alice as heir of her deceased daughter and passing to defendant under her said warranty deed; and, on the theory indicated, adjudged to plaintiffs each a specified undivided interest as tenants in common.
Other terms of this decree may become material later on, if we hold against defendant's principal contention presently stated.
The case runs on the theory that defendant bought in good faith for full value and took and held possession under his deed claiming the fee; so that, unless the deed from Whitson, ex vi termini, is to be construed as notice of an interest in the "heirs" of Laura Alice, he had no notice of any such interest, this notwithstanding there was testimony showing declarations of Whitson made before and at the time of the execution of his said deed to the effect that he intended to tie the land up so Laura Alice and her spouse could not convey the fee, and later declarations to the effect that he had done so. But none of these verbal acts or declarations were brought home to defendant. His counsel in due time objected to them and, the trial court reserving its ruling, the record shows that at the close of the case the objections were neither ruled on nor was the decree founded on the testimony objected to. It was founded on the face of the deed itself.
The main question is: (1) Did the deed from Whitson to Laura Alice, on its face, and by virtue of its terms, convey the whole title to her? Defendant contends it did. Plaintiffs contend contra. The court held with plaintiffs, and defendant appeals.
A subsidiary question is: (2) If we refuse to follow the court's construction of the deed but hold contra and with defendant, then (this not being a suit in equity to reform the Whitson deed and the intentions and declarations of the grantor aliunde the deed not having been brought home to defendant before his purchase so as to charge him with notice) is the testimony of grantor's said intentions and declarations admissible against defendant?
There are other nice questions arising on other hypotheses (for instance, whether Richard M. is bound on the covenants of warranty in his deed to defendant, whether Laura Alice did not take a life estate under the Whitson deed, and whether the "heirs" did not take as a class which opened and let in the child born after such deed and dying before suit) but none of them are...
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