Griffin v. McIntosh.

• Decision Date: 09 June 1903
• Citation: 75 S.W. 677,176 Mo. 392
• Court: Missouri Supreme Court
• Parties: GRIFFIN et al. v. McINTOSH.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 677

176 Mo. 392

GRIFFIN et al. v. McINTOSH.^*

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

DEEDS—CONSTRUCTION—TESTAMENTARY DISPOSITION—ATTESTATION—DELIVERY—EVIDENCE.

1. A deed from father to son reciting that it was on the express condition that the grantor and his wife were to live on the farm conveyed until their death as "one of the family," and to hold the deed in their possession until their death, when it was to be delivered to the grantee or his heirs, was a testamentary disposition of the land to the son, and did not pass a present interest in the property.

2. Defendant's father executed a deed to defendant, which was not to take effect until the death of defendant's father and mother, when it was to be delivered to defendant or his heirs. Shortly before the father's death he stated to a witness, in defendant's presence, that he would give the deed up to defendant, that defendant "could take care of it," and that he would give it into defendant's "care to take care of it." The witness then procured the deed and delivered the same to defendant. Held, that such declarations were insufficient to show an intent of the father to waive the provisions of the deed and vest a present interest in the grantee.

3. A deed which was in effect a testamentary disposition of the property could not operate as a will after the grantor's death, where not properly attested as such.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by Susan B. Griffin and others against James H. McIntosh. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Ross & Sea, for appellants. J. B. Upton and C. H. Skinker, for respondent.

GANTT, P. J.

This is an action by two of the daughters of Collon McIntosh, deceased, to recover each one undivided one-eighth of certain real estate in Polk county from the defendant, James H. McIntosh, their brother, who is a son of said Collon McIntosh, deceased. Collon McIntosh left surviving him at his death, March 23, 1896, his widow, Jane McIntosh, who afterwards died January 7, 1898, and eight children. After the death of the widow the plaintiffs brought this action of ejectment to be let into possession with their brother, the defendant, of two-eighths of the lands owned by their father in his lifetime, and of which defendant was and had been in the exclusive possession since the death of his mother, January 7, 1898. The defendant claimed title through a deed from his father and mother of date February 15, 1895, which is in words and figures following:

"This indenture, Made on the 15th day of February, A. D., One Thousand Eight Hundred and Ninety-five, by and between Collon McIntosh and Jane McIntosh his wife of the County of Polk and State of Missouri, parties of the First Part, and James H. McIntosh of the County of Polk and State of Missouri, party of the Second Part.

"Witnesseth, That the said parties of the First Part, in consideration of the sum of One Dollar, to us paid by the said party of the Second Part, the receipt of which is hereby acknowledged do by these presents Grant, Bargain and Sell, Convey and Confirm unto the said party of the Second Part, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the County of Polk and State of Missouri, to-wit: The northeast quarter of the northeast quarter of section No. Eighteen (18) also the northwest quarter of the northwest quarter Section No. Seventeen (17) less ten acres off the east side, and the southeast fourth of the northeast quarter Section No. Eighteen (18) all in Township Thirty-three (33) of Range No. Twenty-four (24) containing in all one hundred and ten acres.

"Upon this express condition that the said Collon McIntosh and Jane McIntosh is to live on the farm till their death as one of the family and to hold the deed in their possession till their death then this deed is to be delivered to James H. McIntosh or his heirs.

"To Have and to Hold the premises afore said, with all and singular the rights, privileges, appurtenances and immunities thereto belonging, or in anywise appertaining unto the said party of the Second Part, and unto his heirs and assigns forever, the said Collon McIntosh hereby covenanting that they lawfully seized of an indefeasible estate in fee in the premises herein conveyed, that they have good right to convey the same, that the said premises are free and clear of any incumbrance done or suffered by them or those under whom they claim; and that they will warrant and defend the title to the said premises unto the said party of the Second Part, and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.

In witness Whereof, The said parties of the First Part have hereunto set their hands and seals the day and year first above written.

                  "[Seal.]                Collon McIntosh
                                               her
                                          "Jane X McIntosh
                                               mark
                

"Signed, sealed and delivered in presence of us: John W. Crow, Ida A. McIntosh, witnesses to mark.

"State of Missouri, County of Polk,—ss. On this 15th day of February, 1895, before me personally appeared Collon McIntosh and Jane McIntosh, his wife, to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed.

"In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in Madison township the day and year first above written.

"Jno. W. Crow, Justice of the Peace.

"Filed for record, This 2nd day of April A. D. 1896, at 9 o'clock 30 minutes a. m. Arthur Griffin, Recorder. By Otis Mosier, Deputy."

Plaintiff objected to this deed on the ground that it was void on its face. The defendant offered parol evidence that this deed was delivered to him about two weeks before his father's death. To this evidence plaintiff objected on the ground that it would contradict the intention of the grantor as shown on the face of the instrument, and that defendant was bound by the recitals therein. These objections were by the court overruled, and plaintiff duly excepted.

The construction to be given this instrument is the controlling point on this appeal. The instrument is an ordinary warranty deed in form, except the clause immediately following the description, which is as follows: "Upon this express condition that the said Collon McIntosh and Jane McIntosh is to live on the farm till their death as one of the family and to hold the deed in their possession till their death, then this deed is to be delivered to James H. McIntosh or his heirs." What effect must be given this instrument? It is beyond conjecture that Collon McIntosh and his wife executed this instrument with the intention of conferring at some time the title to the lands therein described on his son James, and, looking to this condition, it would appear to be equally clear that the time when the title was to vest in the son was after the death of the...