Johnson v. Calvert

• Decision Date: 02 July 1914
• Docket Number: No. 16,388.,16,388.
• Citation: 169 S.W. 78,260 Mo. 442
• Parties: JOHNSON et al. v. CALVERT.
• Court: Missouri Supreme Court

169 S.W. 78

260 Mo. 442

JOHNSON et al. v. CALVERT.

No. 16,388.

Supreme Court of Missouri.

July 2, 1914.

Rehearing Denied July 14, 1914.

EJECTMENT (§ 9)—TITLE — DEEDS — LIMITATION.

Where parents conveyed land in controversy to their daughter-in-law "and to the heirs" of their son, the daughter-in-law's husband, in 1865, and in 1881 the daughter-in-law and her husband conveyed the land to defendant's grantor by warranty deed purporting to convey the whole title to the land, which deed was promptly recorded, and the grantee and his successors in title thereafter continued in possession for more than the statutory period of limitation, the heirs of the son could not thereafter recover any part of the land in ejectment.

In Banc. Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Ejectment by Edgar C. Johnson and others against Frank Calvert. Judgment for defendant, and plaintiffs appeal. Affirmed.

Plaintiffs sue in ejectment for 20 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 limitations.

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:

"This deed, made and entered into this ninth day of October, A. D. 1865, by and between Robert Johnson and Clarissa Johnson, his wife, of the county of Clinton, in the state of Missouri, parties of the first part and Mary E. Johnson, wife of Thomas Johnson of the county of Clinton, in the state of Missouri, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of four hundred dollars, to them in hand paid, by the said party of the second part the receipt whereof is hereby confessed, do by these presents give, grant, bargain and sell unto the said party of the second part and the heirs of the said Thomas Johnson and assigns forever, the following described real estate, lying and being in the county of Clinton and state of Missouri to-wit: [Description omitted.]

"To have and to hold the same, with all the privileges and appurtenances thereto belonging or in any wise appertaining, unto him, the said party of the second part and to the heirs of the said Thomas Johnson and assigns forever; the said parties of the first part, for themselves, heirs, executors, and administrators, do covenant and agree that they will warrant and forever defend the title to the said real estate, and every part thereof, unto him, the said party of the second part and the heirs of the said Thomas Johnson heirs and assigns, against the lawful claim or claims of all persons whatsoever, claiming or to claim the same or any part thereof."

The words italicized are written with pen, and are interlineations into a printed form of warranty deed. There is a controversy about whether the consideration recited in this deed was actually paid, and also another controversy relating to the reasons which moved Robert Johnson and his wife to execute the deed, but, as the instrument is valid, whether the alleged consideration was paid, or whether the deed was a gift (the right of no creditor being involved), we do not think that the consideration upon which the instrument was based is a necessary factor in this case.

On June 16, 1881, Mary E. Johnson and her husband, Thomas Johnson, made to one Robert L. Searce a warranty deed purporting to convey the whole title to the land in controversy. This deed was promptly placed of record. Defendant claims title under this deed to Searce; and, if it passed a fee-simple title to the whole tract, then the judgment is for the right party. Thomas Johnson, the ancestor of plaintiffs, died on April 16, 1884, and his wife, Mary E., died in April, 1909. The descendants of Mary E. Johnson, who are likewise descendants of Robert Johnson, are the plaintiffs in this action. One of said plaintiffs, Mrs. Carter, was born subsequent to the execution of the deed by Robert Johnson and wife now in judgment.

Plaintiffs contend that the deed hereinbefore set out conveyed only a life estate to their mother, Mary E. Johnson, with remainder to the children of Robert Johnson, and that, the life estate of said Mary E. Johnson having terminated at her death in 1909, the judgment should have been for plaintiffs. On the other hand, defendant asserts that, as a living person cannot have heirs, the interlining into the deed of the words "to the heirs of Thomas Johnson" can have no force, and should be rejected, thus leaving the whole title in said Mary E. Johnson, and that said title passed by the deed from Mary E. Johnson and Thomas Johnson her husband to Searce, executed June 1, 1881, and therefore is now fully vested in defendant. These contentions seek a construction of the deed before quoted from Robert Johnson and wife to Mary E. Johnson "and the heirs of Thomas Johnson."

The evidence in regard to adverse possession will be noted in our opinion.

Frank B. Ellis, of Plattsburg, and John A. Connett, of St. Louis, for appellants. W. S. Herndon, of Plattsburg, for respondent.

I. Estate Tail.

BROWN, J. (after stating the facts as above).

One theory of appellants is that the deed from Robert Johnson and wife conveyed an estate tail, which, by sections 2872 and 2874, R. S. 1909, was converted into a life estate in said Mary E. Johnson, with remainder to her bodily heirs, who are the plaintiffs in this case.

It is true that the plaintiffs are the bodily heirs of Mary E. Johnson, but they are not so described in the deed. In fact, they are not referred to as the heirs of Mary E. Johnson; neither do we find any language in the deed which designates them as remaindermen. Therefore this point must be ruled against plaintiffs.

II. Deed to Heirs of Living Person.

The main contention of plaintiffs is that Thomas Johnson could not have had any heirs in 1865, because he was then living; therefore the words "to the heirs of Thomas Johnson," written three times into the deed, are vague, meaningless, and should be rejected as surplusage and given no effect. In support of this insistence the following cases are cited: Arthur v. Weston, 22 Mo. loc. cit. 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. 186; and Desloge v. Tucker, 196 Mo. 599, 94 S. W. 283.

In Arthur v. Weston, 22 Mo. 378, it was held that a deed to W. W. Phelps & Co. only operated to pass title to Phelps, and not to other members of the firm. In Boone v. Moore, 14 Mo. 420, it is held that a conveyance to the "heirs" of a man then dead was valid. The deed construed in Green v. Sutton, 50 Mo. 186, is so entirely unlike the one now in judgment that what was said in that case is not authority here. The Tucker Case (196 Mo. 599, 94 S. W. 283) contains a definition of the word "heirs" as used in section 152, R. S. 1909.

I am not able to see how any of the Missouri cases cited furnish any very solid support for appellants' position. These cases are quite old, and seem to have been decided when technical common-law rules for construing deeds were in more favor than at the present time. The same may be said of the Massachusetts and Pennsylvania Cases above cited. In the Massachusetts case (1 Pick. 27, loc. cit. 31) the announcement is made that the rule in that state for construing wills is not the same as for construing deeds. While with us the rule is the same. Long v. Timms, 107 Mo. 512, loc. cit. 519, 17 S. W. 898. In Morris v. Stephens, 46 Pa. 200, a deed to the heirs of a living man was held void for uncertainty.

In the light of the circumstances under which the deed in judgment was executed, we are not justified in holding that the words "to the heirs of Thomas Johnson," inserted in said deed three times, may be rejected as surplusage, or as void for uncertainty. When the word "heirs" is penned by a seasoned disciple of Blackstone, we may construe it according to its full legal and technical import. However, in this case the deed to be construed bears on its face almost conclusive evidence that it was drawn by a layman. The ordinary printed form of warranty deed was used, and the words "his heirs" are erased therefrom, and the words "to the heirs of Thomas Johnson" are written in three times with a pen.

There are two rules of law well accepted in our state which render it impossible for us to ignore the words "to the heirs of Thomas Johnson" in this conveyance: First, the intent of the grantors, rather than technical rules of law, must be considered in construing the deed. The authorities upon this point are numerous, as well as harmonious: Long v. Timms, 107 Mo. 512, loc. cit. 519, 17 S. W. 898; Hunter v. Patterson, 142 Mo. 310, loc. cit. 318, 44 S. W. 250; Bean v. Kenmuir, 86 Mo. loc. cit. 671; Aldridge v. Aldridge, 202 Mo. 565, loc. cit. 572, 101 S. W. 42; Utter v. Sidman, 170 Mo. 284, loc. cit. 294, 70 S. W. 702, and Speed v. Terminal Ry. Co., 163 Mo. 111, loc. cit. 124-126, 63 S. W. 393. Second, the words "to the heirs of Thomas Johnson" are interlined into this deed with a pen, the body of the deed being on a printed form; and the rule is that, where there is a conflict between the written and printed words of an instrument, the written words must be given effect, even when to do so is to disregard or place a different color upon the words or clauses which are printed. Davidson v. Manson, 146 Mo. loc. cit. 618, 48 S. W. 635; De Paige v. Douglas, 234...