Inlow v. Herren

• Decision Date: 19 December 1924
• Citation: 267 S.W. 893
• Parties: INLOW et al. v. HERREN et al.
• Court: Missouri Supreme Court

267 S.W. 893

INLOW et al. v. HERREN et al.

Supreme Court of Missouri, Division No. 1.

December 19, 1924.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Suit by Ottie Inlow and others and James A. Thomas against Cora B. Herren and others and Jennie A. Newman and others to quiet title and partition land. From the decree rendered, James A. Thomas appeals, and Jennie A. Newman and others prosecute cross-appeal. Affirmed in part and in part reversed and remanded, with directions.

Barrow & Barrow, of Vandalia, and Hostetter & Haley, of Bowling Green, for appellant James A. Thomas.

Frank Howell, of Troy, for appellants Jennie Ann Newman et al., and Fannie I. Thomas, respondent.

LINDSAY, C.

The plaintiffs in this cause, under the first count of their petition, asked for determination of title to certain lands in Pike county, setting forth therein the interests owned or claimed by the several parties, and, in the second count, asked for a decree of partition in accordance with the respective interests asserted. The entire body of land consisted of 240 acres, but the interests as alleged had reference to the respective claims of the parties in three several tracts, one of 70 acres, one of 90 acres, and one of 80 acres. Upon the trial it was found, and it is conceded here, that James A. Thomas one of the plaintiffs, was sole owner of the 70-acre tract, and that tract, and any issue as to it, was eliminated. The court entered its decree for the sale in partition of the 90-acre tract, and of the 80-acre tract, and for distribution of the proceeds among the parties, in accordance with their respective rights as found, and, a sale of these two tracts having been made and approved, an order of apportionment of the proceeds was entered. The court upon the taking of the appeals ordered the net proceeds of sale to be held pending the appeals. The rights involved here are the rights in the net uroceeds. The cause is here upon cross-appeals: First, the appeal of James A. Thomas, one of the plaintiffs, who assigns error in the finding that he was not the owner of an undivided one-fourth interest in the 90-acre tract, claimed by him under a deed from his sister Fannie I. Thomas, who was his rival, and the successful claimant for said onefourth interest; second, the appeal of Jennie Ann Newman and others, constituting nineteen of the defendants, who assign error in that they were adjudged to have no interest in the 80-acre tract, but that the 80-acre tract was found to be owned by said James A. Thomas, a plaintiff, and by Cora B. Herren a defendant, both of whom are respondents here upon the issue of title to said 80acre tract.

The issue first considered is that related to the interests of James A. Thomas and Fannie I. Thomas in the 90-acre tract. The facts upon which this issue arises are simple. It was admitted that as to this 90-acre tract the common source of title was Sarah Helen Thomas, who was the mother of James A. Thomas, Fannie Thomas, and Cora Herren, and the grandmother of plaintiff Ottie inlow and eight other plaintiffs, who are children of Lee Routen, a deceased daughter of said Sarah Helen Thomas, deceased. It was admitted that said Sarah Helen Thomas acquired fee-simple title to the 90-acre tract by a deed made May 15, 1880, and that she continued to own the 90-acre tract until her death, in October, 1917, and that she died intestate. Her heirs at law, therefore, are her son, said James A. Thomas, her daughters, Fannie I. Thomas and Cora B. Herren, and her grandchildren, Ottie inlow and others, children of Lee Routen, deceased. The issue between James A. Thomas and Fannie 1, Thomas as to this 90-acre tract arose and depends upon the effect of a deed made by Fannie Thomas to James A. Thomas on August 6, 1897, whereby Fannie I. Thomas undertook to convey to James A. Thomas any interest she might thereafter acquire in the land as heir of her mother, Sarah Helen Thomas. James A. Thomas claimed that by virtue of this deed Fannie I. Thomas had no interest in the 90-acre tract, but that he had acquired the one-fourth interest which she otherwise would have inherited from her mother. This deed is as follows:

"This indenture, made on the sixth day of August, A. D. one thousand eight hundred and ninety-seven, by and between Fannie I. Thomas and Samuel S. Thomas, her husband, of the county of Macon and state of Missouri, parties of the first, part, and James A. Thomas, of the county of Audrain in the state of Missouri, party of the second part, witnesseth, that the said parties of the first part, in consideration of the sum of one hundred ($100.00) xx/100 dollars, to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents, remise, release and forever quitclaim unto the said party of the second part the following described lots, tracts, or parcels of land, lying, being, and situate in the county of Pike and state of Missouri, to wit: The southwest quarter, containing 160 acres, also the west half of the northwest quarter containing 80 acres all in section 15, township 52, range 4 west.

"The grantors herein convey all their right, title, and interest that they now have in the above-described land, and any right, title and interest that they may acquire in the future as heirs of Sarah H. Thomas and Cora B. Thomas.

"To have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part, and his heirs and assigns forever; so that neither the said parties of the first part, nor their heirs, nor any other person or persons for them or in their name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and every of them shall by these presents, be excluded and forever barred.

"In witness whereof the said parties of the first part have hereunto set their hands the day and year first above written.

                                         "Fannie I. Thomas
                                         "S. S. Thomas."
                

The 90-acre tract now in issue is a part of the 240 acres described. This deed was acknowledged by the grantors on August 6, 1897, and was filed for record on August 8, 1897. The trial court held that this deed was insufficient to convey any interest which Fannie I. Thomas thereafter inherited from her mother upon the death of the latter in October, 1917. The issue was made under the pleadings as follows: James A. Thomas pleaded ownership of a one-half interest in the 90-acre tract. Fannie I. Thomas denied this, and pleaded that James A. Thomas owned a one-fourth interest, and that she owned a one-fourth interest therein, to which James A. Thomas replied, setting up the making of the aforesaid deed, and pleading that by virtue thereof, and of acceptance of a valuable consideration therefor, Fannie I. Thomas was estopped from claiming any interest in the tract mentioned. The court overruled the motion of Fannie I. Thomas to strike out that portion of the reply of James A. Thomas, which set up an estoppel; the ground of the motion being that such portion was a departure from the petition, and also that it did not state facts sufficient to constitute any defense to her answer. There is no denial of the allegation of the payment of the consideration for the deed. There is no allegation or proof of fraud in procuring the execution and delivery of the deed. The issue is presented squarely and solely upon the effect of the terms of the deed itself. As a mere quitclaim deed it could operate to convey only such interest as was already vested in the maker, and was inoperative to pass an after-acquired title. Bogy v. Shoab, 13 Mo. 365; Gibson v. Chouteau's Heirs, 39 Mo. 536; Ridgway v. Holliday, 59 Mo. 444; Butcher v. Rogers, 60 Mo. 138.

The deed is distinguished from an ordinary deed of quitclaim by the provision inserted:

"The grantors herein convey all their right, title, and interest that they now have in the above described land and any right, title and interest that they may acquire in the future as heir of Sarah H. Thomas and Cora B. Thomas."

This provision written into the body of the deed not only shows a purpose to convey the expectancy of Sarah I. Thomas as prospective heir of her mother, but leads reasonably to the conclusion that the transfer of her expectancy was a thing uppermost in the minds of the parties. In this, as in every deed, its operation, as passing any particular right, is largely a matter of intention. In this deed the intention of the grantor, to pass to the grantee whatever right in this land there might fall thereafter to the grantor as heir of her mother is clearly expressed.

There has been much discussion of the subject of the transfer of expectancies by the courts of the several states in this country, and by the English courts. There is much of variety in the views expressed, and in the reasons held to be compelling one way or the other, and there is not entire harmony. The subject has been made interesting by the `reasoning and learning to be found, in the opinions of judges, and the texts of writers upon the law; but any general review of these here would be more lengthy than is necessary, or profitable.

An elaborate review of the cases may be found in 17 A. L. R. at page 597, in the note appended to the opinion in Hunt v. Smith, 191 Ky. 443, 230 S. W. 936, 17 A. L, R. 588.

The generally accepted doctrine is stated in Taylor v. Swafford, 122 Tenn. 303, 123 S. W. 350, 25 L. R. A. (N. S.) 442, where it was said:

"Both in English and American courts of equity, where it is found that the contract of an expectant has been fairly made and upon a valuable consideration, it will be enforced, as against the grantor and his privies, whenever the property covered by it comes into possession. This is done, however, by these courts, not, upon the ground that the grant is one of a present...