Godman v. Simmons
| Decision Date | 22 December 1892 |
| Citation | 20 S.W. 972,113 Mo. 122 |
| Parties | Godman et al., Appellants, v. Simmons et al |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court.--Hon. Richard Field, Judge.
Affirmed.
J. P Strother for appellants.
(1) The remainder created by the deed in the heirs of May R Godman's body was a contingent one. 4 Kent's Commentaries [11 Ed.] marg. p. 232; Tiedeman on Real Property, 345, and notes; 2 Washburn on Real Property, 242 268; Riggins v. McClallan, 28 Mo. 23; Aubuchon v. Bender, 44 Mo. 560; Emison v. Whittlesey, 55 Mo. 254; Persen v. Newman, 62 Mo. 201; Delassus v. Gatewood, 71 Mo. 372; Richardson v. Wheatland, 7 Mass. 169. (2) Said contingent remainder being to a dubious and uncertain person conveyed no interest which was subject to sale and transfer during the life of the life tenant. 2 Washburn on Real Property, 240; 4 Kent's Commentaries, 262; 2 Thomas Coke [2 Am. Ed.] 117. Jackson v. Waldron, 13 Wend. 178; 4 Kent's Commentaries, 262. When he says "if the person be not ascertained, they (contingent estate of inheritance) are not then possibilities coupled with an interest and they cannot be either devised or descend at the common law." 2 Coke [2. Am. Ed.] 117; Jackson v. Waldron, 13 Wend 178. (3) The rule laid down in some cases that mere possibilities may be released to the owner of the land or the terre tenant will not avail here, because none of the deeds in evidence were made to a party occupying any such relation to the land. Allen v. De Groodt, 98 Mo. 160; Coke on Littleton, secs. 453, 267b; Varney v. Stevens, 22 Me. 331; 1 Washburn on Real Property [6 Ed.] 129; Whitney v. Slater, 36 Minn. 103. (4) Mrs. Way and Mrs. Naylor were both married women and the deeds in which they joined respectively could not, under the statute, work an estoppel as to them as to the after acquired estate. They signed no deeds since their mother's death. Revised Statutes, 1889, sec. 2396; Reese v. Smith, 12 Mo. 344; Parker v. Circle, 60 Mo. 258; Chauvin v. Wagner, 18 Mo. 551, et seq.; Farar v. Christy, 24 Mo. 453; White v. McPheeters, 75 Mo. 292. (5) If we treat the pretended deed from Beal Godman to his father in April, 1880 as having any validity, still, both it and the deed from Mrs. Naylor to her father, Milvin Godman, were quitclaims and not sufficient to pass the title afterwards acquired upon the death of Mary R. Godman, the life tenant. Bogy v. Shoab, 13 Mo. 378, et seq.; Gibson v. Chouteau's heirs, 39 Mo. 566; Valle v. Fleming's heirs, 18 Mo. 486; Butcher v. Rogers, 60 Mo. 138; Martindale on Conveyancing [2 Ed.] 152.
Draffen & Williams and Samuel Boyd for respondents.
(1) Our statute is careful to make alienable by deed, not only estates, but also interests in lands, which covers the case of executory devises and contingent remainders as fully as if they were named. Lackland v. Nevins, 3 Mo.App. 335; Wilson v. Wilson, 32 Barb. 328; White v. McPheeters, 75 Mo. 286; 1 Jones on Mortgages, sec. 137, p. 102. (2) Even under the strictest rules of the common law, a party having a contingent interest in land might release it to one also having an estate therein, notwithstanding he could not convey it to a stranger. In the case at bar the conveyances from the plaintiffs, as well as the deed from Beal Godman, were not to a stranger, but to a party already possessed of an estate in the land, and were valid transfers of their interest under the above rule. Jeffers v. Lanson, 10 Ohio St. 101; Miller v. Eams, 19 N.Y. 384; Wilson v. Wilson, 32 Barb. 328; 2 Leading Cases in American Law of Real Property, 372. (3) It is true that the deed of Mattie Naylor and that of Beal Godman to Melvin Godman were executed subsequently to the deed of trust from Melvin Godman to W. R. Gist, trustee. Still Melvin Godman's deed of trust passed the interest subsequently acquired by him. Boyd v. Hazeltine, 19 S.W. 822; Cockrill v. Bane, 94 Mo. 444. (4) If the contingent interest of W. C. Godman, Josephine Way, Mattie Naylor and Beal Godman could under our statute be transferred; or if said interests could be released to one having an estate in the land, then, by virtue of the deeds herein, before referred to, their contingent interests passed from them and vested in their grantees and the defendant Simmons has succeeded to their title. (5) Even if it should be held that the contingent interests of the plaintiffs and Beal Godman could not be conveyed, and further that the same could not be released to one having an estate in the land, and that therefore their conveyances were void, still the plaintiff, William C. Godman, is undoubtedly estopped from asserting title to the land in controversy. 1 Jones on Mortgages, sec. 682; 2 Jones on Mortgages, sec. 1483; Bailey v. Trustees 12 Mo. 174; Cockrill v. Bane, 94 Mo. 444. (6) The same rule ought to be enforced against Josephine C. Way, although a married woman. She joined in the deed containing covenants of warranty, and under the statute these covenants ought to bind her "so far as may be necessary effectually to convey from her and her heirs all the right, title and interest expressed to be conveyed" by her deed. Hill v. West, 8 Ohio 222; Nash v. Spoffird, 43 Am. Dec. 425; Revised Statutes, 1889, sec. 2396.
This is an action in ejectment, in which the plaintiffs seek to recover an undivided three fourths of a tract of land in Saline county. The answer admitted possession, and denied all the other material allegations of the petition. The case was tried before the court without a jury, the judgment was for the defendants and the plaintiffs appeal.
Elizabeth O'Bannon is the common source of title. On the twenty-sixth day of October, 1868, she and her husband duly executed, acknowledged and delivered a warranty deed, conveying the premises to Mary R. Godman "for and during her natural life, and with remainder to the heirs of her body, * * * to have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging or in anywise appertaining, unto the said Mary R. Godman during her natural life, and then to the heirs of her body and assigns forever." The plaintiffs, William C. Godman, Josephine C. Way and Mattie B. Naylor, are the children of the said Mary R. Godman, who died in March, 1888. Beside the plaintiffs, the said Mary R. Godman had three other children, Burton L. Godman, who died in 1876, Mollie, who intermarried with one Emmerson, and afterwards died in February, 1880, leaving one child, Edward, surviving her, and Beal Godman, who died in September, 1888, without lineal descendants.
The plaintiffs, after showing these facts, rested, and the defendants upon their part introduced in evidence a deed of trust executed by Melvin Godman and the said Mary R. Godman, his wife, the said William C. Godman and wife, John B. Way and the said Josephine C. Way, his wife, and the said Burton L. Godman and Mollie Godman, to Samuel Boyd, trustee, to secure the payment of a promissory note to one George Farlow for $ 1,300, due one year after date, with power of sale upon default in payment of the debt at maturity. This deed was dated April 4, 1876. The defendants also offered the note secured by said deed of trust, which is signed by all of the grantors therein. The defendants next offered a deed from Samuel Boyd, trustee, to Henry Emmerson, dated October 10, 1877. This deed was made in pursuance of a sale under the power contained in the foregoing deed of trust. The defendants next offered a deed dated October 19, 1878, containing covenants of general warranty from Henry Emmerson and wife to defendant, Henry C. Simmons; and then a deed dated January 27, 1880, from Henry C. Simmons and wife to Melvin Godman. Next a deed of trust of same date from Melvin Godman and wife to W. R. Gist, trustee, to secure an indebtedness due to said H. C. Simmons, and a deed from Gist, trustee, under the power of sale contained in said deed of trust, to Henry C. Simmons, dated September 1, 1886. The defendants next offered a deed, dated April 3, 1880, from Beal Godman to Melvin Godman, and deed dated May 23, 1881, from Mattie B. Naylor and husband, conveying her undivided interest in the land to Melvin Godman.
The plaintiffs objected to the introduction of each of the foregoing deeds on the ground that the same "was incompetent, irrelevant and immaterial," and the objection in each instance was overruled by the court. They also asked declarations of law, in effect excluding said deeds, and declaring that the plaintiffs had the title to the land sued for, which instructions or declarations of law the court refused to give, and plaintiffs excepted.
I. It is provided by the statute of this state that, "When a remainder shall be limited to the heir or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who on the termination of the life estate shall be the heirs or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them." Revised Statutes, 1889, sec. 8838; Revised Statutes, 1865 sec. 6, p. 422. The deed of Elizabeth O'Bannon came before us for construction in the recent case of Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979, and we there held "that the statute just quoted converted the estate tail, created by the deed at common law, into a life estate in the first taker with a contingent remainder in fee simple in favor of those persons who should answer the description of heirs of her body." And as no one can be the heir of a living person it could not be told who the heirs of the body of Mary R. Godman would be until her death, when the contingent remainder in fee under the deed would vest. And that Mrs. Emmerson,...
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