Johnson v. Calvert
| Decision Date | 14 July 1914 |
| Parties | EDGAR C. JOHNSON et al., Appellants, v. FRANK CALVERT |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.
Affirmed.
Frank B. Ellis and John A. Connett for appellants.
(1) The purpose of all construction is to arrive at the intention of the parties to the instrument, and such intention, when ascertained from a consideration of the language used in the whole instrument and the circumstances surrounding the parties at the time the instrument was executed, must govern unless such intention be repugnant to some positive rule of law. Mere technical words or technical rules of construction must, in all instances, give way to this prime rule of construction of deeds. Long v. Timms, 107 Mo. 519; Hunter v. Patterson, 142 Mo. 318; Bean v Kenmuir, 86 Mo. 671; Aldridge v. Aldridge, 202 Mo. 572; Utter v. Sidman, 170 Mo. 294; Speed v Terminal R. Co., 163 Mo. 124. (2) The fact that the usual words for creating an estate in fee simple which appear in the printed form of the deed were erased and other words interlined is very material in ascertaining the intention of the grantor and determining the effect to be given to the deed. Davidson v. Manson, 146 Mo. 618; Williamson v. Brown, 195 Mo. 329; Hunter v. Patterson, 142 Mo. 318; Depaige v. Douglas, 234 Mo. 88. It cannot be reasonably contended, in view of the erasures and interlineations in the deed in this case, that it created an estate in fee simple in Mary Johnson, the named grantee, without doing violence to the evident intention of the grantor. (3) A construction which renders all parts of the deed operative should be adopted if possible. Linville v. Greer, 165 Mo. 397; Fanning v. Doan, 128 Mo. 329; 2 Devlin on Deeds (1 Ed.), sec. 848; Bean v. Kenmuir, 86 Mo. 671; Armor v. Frey, 226 Mo. 646. If it is necessary to do so in order to carry out the intention of the parties, words may be supplied, transposed or changed. Briant v. Garrison, 150 Mo. 668; Howell v. Sherwood, 242 Mo. 537. (4) The written rather than printed part of a deed governs in the construction of the instrument. DePaige v. Douglass, 234 Mo. 88; Davidson v. Manson, 146 Mo. 618; Williamson v. Brown, 195 Mo. 329. (5) It is not necessary that the estate be expressly limited by the use of the technical words "for life," or other similar words in order to create an estate for life, either by conveyance or devise. If it appears to be the intention of the grantor or testator that the deed or will should create such an estate, the failure to use the stereotype phrase is of no consequence. Kinney v. Matthews, 69 Mo. 520; Cross v. Hoch, 149 Mo. 343. (6) In Missouri the rule for construction of deeds and wills is the same; namely, to ascertain and give effect to the intention of the grantor or testator. Briant v. Garrison, 150 Mo. 668; Aldridge v. Aldridge, 202 Mo. 572; Long v. Timms, 107 Mo. 519. (7) If the deed from Robert Johnson to Mary Johnson and the heirs of Thomas Johnson offered in evidence is considered as vesting a present estate by tenancy in common in Mary Johnson and her children as suggested by counsel for defendants it must necessarily be held that the three children born subsequent to the execution of the deed are excluded from any interest thereunder. Kinney v. Matthews, 69 Mo. 526; Tygard v. Hartwell, 204 Mo. 206. This is so clearly contrary to the intention of the grantor that we believe it is unworthy of serious consideration. Our own Supreme Court and the courts of other States have held that such a deed creates a life estate in the grantees named and a remainder in fee simple in all of his children whether born before or after the execution of the deed. Kinney v. Matthews, 69 Mo. 525; Hubbird v. Goin, 137 F. 822. (8) As has been suggested by our Supreme Court, the natural course for a grantor to pursue in case he wishes to grant such an estate is to name the living children as grantees together with their parent. Tygard v. Hartwell, 204 Mo. 206; Rines v. Mansfield, 96 Mo. 399. (9) While many of the authorities hold that a conveyance of an estate in present to the heirs of a living person is void, it is clear that there may be a valid conveyance or devise to any person for life with remainder to the heirs of another person who is living, the remainder thus created being contingent until such time as the remaindermen are definitely ascertained by the death of their ancestor, when it immediately becomes vested. Preston v. Brant, 96 Mo. 559; Tiedeman on Real Property (2 Ed.), sec. 411; 24 Am. & Eng. Ency. Law (2 Ed.), 397. (10) After we have gleaned the general principles of law from the cases, each case must stand on its own facts. Aldridge v. Aldridge, 202 Mo. 573; Fanning v. Doan, 128 Mo. 328. (11) If a deed cannot operate exactly as intended but can operate in another mode which will carry out the purpose and intent of the grantor, it will be so construed. 2 Devlin on Deeds (1 Ed.), sec. 837; Fanning v. Doan, 128 Mo. 329. (12) If the Robert Johnson deed be construed as vesting a life estate in Mary E. Johnson with remainder to the children of Thomas Johnson, the remainder created would be to the children as a class, and would at once vest in the living children subject to open and let in after-born children. Tindall v. Tindall, 167 Mo. 218.
W. S. Herndon for respondent.
(1) The deed from Robert Johnson and wife conveyed the fee to the grantee, Mary E. Johnson. R. S. 1909, sec. 2870; Tygard v. Hartwell, 204 Mo. 200; Gannon v. Albright, 183 Mo. 238; Ewing v. Shannahan, 113 Mo. 188; Rothwell v. Jamison, 147 Mo. 601. (2) The deed did not create a life estate in Mary E. Johnson, with remainder to the heirs of Thomas Johnson. Yocum v. Siler, 160 Mo. 282; Gannon v. Albright, 183 Mo. 238; Gannon v. Pauk, 200 Mo. 75. (3) A conveyance to the heirs of a living person is void, because no one is in existence to whom an estate can pass. Arthur v. Weston, 22 Mo. 382; Boone v. Moore, 14 Mo. 420; Hall v. Leonard, 1 Pick. (Mass.) 27; Morris v. Stephens, 46 Pa. 200; Green v. Sutton, 50 Mo. 193. (4) The deed did not create a life estate in Mary E. Johnson, with remainder to the children of Thomas Johnson, born both before and after the execution of the deed. Tygard v. Hartwell, 204 Mo. 200. (5) The deed did not create an estate tail in Mary E. Johnson, which the statute would convert into a life estate in the first taker, and a remainder in the heirs of her body by Thomas Johnson. Tygard v. Hartwell, 204 Mo. 200; 1 Washburn, Real Property (5 Ed.), sec. 22; 11 Am. & Eng. Ency. Law (2 Ed.), p. 371; 2 Blackstone Com., p. 115. (6) An estate tail will not be created by implication and inference, unless the implication is necessary and the inference an inexorable one. Gannon v. Pauk, 200 Mo. 94. (7) Conveyances are never construed so as to make a possibility of reverter. If Mary E. Johnson had died prior to the death of her husband, Thomas Johnson, he could have had no heirs, general or special, to take. And if Mrs. Johnson had only a life estate, the land would revert. Courts do not adopt such a construction unless there is an unequivocal grant of a life estate only to the first taker. Green v. Sutton, 50 Mo. 193; Sec. 2870, R. S. 1909. (8) Where a deed or other written instrument conveys a fee, this estate cannot be cut down by subsequent ambiguous words following in the same instrument. Yocum v. Siler, 162 Mo. 282; Gannon v. Albright, 183 Mo. 238; Gannon v. Pauk, 200 Mo. 75; Sec. 579, R. S. 1909; Roberts v. Crume, 173 Mo. 580; Roth v. Rauschenbusch, 173 Mo. 593; Underwood v. Cave, 176 Mo. 12; Armor v. Frey, 226 Mo. 646; Sevier v. Woodson, 205 Mo. 214; Small v. Field, 102 Mo. 127. (9) The intention of the grantor in a deed or other conveyance must be gathered from the four corners of the instrument, and it must be construed according to its legal effect. Utter v. Sidman, 170 Mo. 204.
BROWN, J. Lamm, C. J., concurs; Graves, Walker and Faris, JJ., concur in result for reasons stated in opinion filed by Walker, J.; Bond and Woodson, JJ., dissent.
In Banc
Plaintiffs sue in ejectment for twenty acres of real estate in Clinton county. The cause was tried by the court sitting as a jury, and a judgment entered for defendant, from which plaintiffs appeal.
Both parties claim under a deed hereinafter set out in full, a construction of which forms the most important issue in this case. The defendant also claims title through the ten-year Statute of Limitation.
On October 9, 1865, one Robert Johnson of Clinton county owned the real estate which forms the subject-matter of this action. Said Robert Johnson at that time had a son named Thomas Johnson. The latter had intermarried with one Mary E. Johnson, of which union five children were born and then living. On the date first named Robert Johnson and wife executed the following warranty deed:
To continue reading
Request your trial