Hudspeth v. Grumke

• Decision Date: 27 September 1919
• Docket Number: No. 20228.,20228.
• Citation: 214 S.W. 865
• Parties: HUDSPETH et al. v. GRUMKE et al.
• Court: Missouri Supreme Court

214 S.W. 865

HUDSPETH et al. v. GRUMKE et al.

No. 20228.

Supreme Court of Missouri, Division No. 1.

September 27, 1919.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by Thomas B. Hudspeth and others against Herman F. Grumke and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

John N. Southern, of Independence, and T. B. Wallace, of Kansas City, for appellants.

Arthur N. Adams and Henry Polk Lowenstein, both of Kansas City, and John W. Clements, of Independence, for respondents.

RAGLAND, C.

This suit involves the title to a tract of land in Jackson county of approximately 200 acres. The first count of the petition is the statutory proceeding to determine title, and the second count is ejectment. The plaintiffs claim title as heirs at law of Malinda P. Wood, the defendants Grumke, Browning, and Galloway claim title under an alleged deed of Malinda P. Wood, and subsequent mesne conveyances. The answer of these defendants prays for a determination of the title between the plaintiff and the defendants and asks affirmative relief. The defendant Alkire is a tenant. The reply denies the title of the defendants and denies that any title was conveyed by the alleged deed of Malinda P. Wood, the common source of title.

Mrs. Wood was a widow without descendants. She resided upon the farm of about 318 acres described in the deed in controversy, occupying the same as a homestead, and this was all the land she owned. She executed the deed in question March 19, 1910, but remained on the farm in full possession until her death, which occurred October 22, 1913. The plaintiffs are her collateral heirs, and they are entitled to recover if the alleged deed did not convey her title. If the deed was legally sufficient for that purpose, the defendants are entitled to prevail. The deed, omitting attesting clause, signatures, seal, and acknowledgment, is as follows:

"This indenture, made on the 19th day of March, 1910, by and between Malinda P. Wood (formerly Malinda P. Beall), a widow, of the county of Jackson, state of Missouri, party of the first part and J. Lamertine Hudspeth, of the county of Jackson, state of Missouri, and the children of Nathan B. Hudspeth, deceased, to wit: Joel Hudspeth, Benjamin Hudspeth, and Julia Gilmer, of the county of ____, state of Texas, and the children of the said Joel Hudspeth, Benjamin Hudspeth and Julia Gilmer, of the county of ____, state of Texas, parties of the second part.

"Witnesseth, that the said party of the first part, in consideration of the sum of $1.00 and other good consideration to her paid by the said parties of the second part, and the love and affection that she bears to the said parties of the second part, does by these presents, grant, bargain, sell, convey and confirm unto the said parties of the second part in the form and manner following, to wit:

"To the said J. Lamertine Hudspeth, for and during the term of his natural life, and upon the death of the said J. Lamertine Hudspeth, to the said Joel Hudspeth, Benjamin Hudspeth and Julia Gilmer, for and during the terms of their natural lives, and on the death' of the said Joel Hudspeth, Benjamin Hudspeth and Julia Gilmer, then an undivided one-third in fee to the child or children of the said Joel Hudspeth, Benjamin Hudspeth and Julia Gilmer, so dying, they taking per stirpes and not per capita, and the children of any deceased child or children taking the part the parent would have taken, the following described tracts, lots and parcels of land, lying, being and situate in the county of Jackson, state of Missouri, to wit:

"Lot two (2) of the northwest quarter of section eighteen (18) and the north half of lot two (2) of the southwest quarter of section eighteen (18), township fifty (50), range thirty (30), containing 108.59 acres; also the east one hundred and ten (110) acres of the northeast quarter of section thirteen (13), and the north half of the southeast quarter of section thirteen (13), all in township fifty (50), range thirty-one (31), containing two hundred and, ten acres (210) and the entire tract hereby conveyed containing three hundred eighteen and fifty-nine one-hundredths (318.59) acres.

"The said party, however, saving and reserving to himself for and during the term of her natural life, the use, possession and control of all and every part of said premises, and all incomes, rents and profits therefrom.

"To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining unto the said parties of the second part, in form and manner as follows, to wit:

"To J. Lamertine Hudspeth, after the death of said party of the first part, the possession, use and management and control of said premises for and during the term of his natural life, and upon his death, to the said Joel Hudspeth, Benjamin Hudspeth and Julia Gilmer, the joint possession, use, management and control during their joint lives, and upon the death of said Joel Hudspeth, Benjamin Hudspeth and Julia Gilmer, or either of them, an undivided one-third of said premises, to the child or children of the said Joel Hudspeth, Benjamin Hudspeth and (the word `or' being written in ink over the typewritten word `and') Julia Gilmer, so dying, taking said premises in fee simple, absolute, they taking per stirpes and not per capita, as aforesaid, and the child or children of any deceased child or children taking the share of the parent, their heirs and assigns forever.

"The said party of the first part covenants to be lawfully seized of an indefeasible estate of the premises aforesaid; that she has good right to convey the same and the same are free and clear from any incumbrances done or suffered by her or those under whom she claims. And she will warrant and defend the title to the premises to the parties of the second part, against the lawful claims and demands of all persons whomsoever."

Upon the death of Mrs. Wood, J. Lamertine Hudspeth went into the possession of the farm, and so continued until his death, which occurred May 9, 1915. Immediately after his death in June, 1915, Benjamin Hudspeth and four children, the seven children of Julia Gilmer, she having died May 10, 1914, and the five descendants of Joel Hudspeth, he having died December 20, 1912, filed in the circuit court for Jackson county an ex parte proceeding in partition. In that proceeding there was allotted and set off to the descendants of Julia Gilmer and Benjamin Hudspeth and his children the land described in the petition, and through them by mesne conveyances the defendants acquired title, if any they have. The deed in question was acknowledged by Malinda P. Wood on the 20th day of March, 1910, and the same was filed in the office of the recorder of deeds of Jackson county on the 21st day of March, 1910, presumably by said J. Lamertine Hudspeth. On the back of the deed which was introduced in evidence was the following indorsement:

"J. L. Hudspeth, Lake City. Filed for record this 21 day of Mar. A. D. 1910 at 10 o'clock 20 minutes a. m. Recorded in Book ____ at page ____. Francis D. Ross, Recorder by W. C. Perry, Deputy."

At the time the deed was offered in evidence by the defendant, the word "or" was written in ink over the word "and" where the same occurs in the deed as indicated in the foregoing copy thereof. J. Lamertine Hudspeth delivered the deed to Mr. Arthur N. Adams, now one of defendant's attorneys, in November, 1913. At that time the deed was exactly in the same condition as to apparent alterations as when offered at the trial. The deed was given Mr. Adams by Hudspeth in an envelope which was postmarked on its face, "Independence,...