Johnson v. Johnson

• Decision Date: 18 June 1902
• Citation: 70 S.W. 241,170 Mo. 34
• Parties: JOHNSON et al. v. JOHNSON.
• Court: Missouri Supreme Court

70 S.W. 241

170 Mo. 34

JOHNSON et al. v. JOHNSON.

Supreme Court of Missouri, Division No. 2.

June 18, 1902.

DEEDS — COVENANTS RUNNING WITH THE LAND — EFFECT OF QUITCLAIM — HOMESTEAD — CONVEYANCE BY WIDOW — AFTER-ACQUIRED TITLE — HEIRS — ABSENCE — PRESUMPTIONS — PARTITION — NECESSARY PARTIES.

1. Where a grantor under a deed containing covenants of seisin did not hold a valid title to the interest attempted to be conveyed at the time the deed was executed, but thereafter acquired the same, such covenant ran with the land, and the after-acquired title inured to the person holding under the first grantee, however remote from him in the line of title, without regard to the fact that an intervening deed was a quitclaim conveying only the grantor's right, title, and interest in the land.

2. An heir believing himself entitled to an undivided three-sevenths of a tract of land conveyed the same by deed with covenants of seisin, describing it as "three undivided sevenths in and to the following described land, to wit," etc., "being the interest I hold as heir at law of P. J., deceased, and the interest acquired by purchase from two other heirs." Held, that the designation of the interest as that part which the grantor held as heir at law, etc., was surplusage, and could not serve to restrict the grant to less than the three-sevenths attempted to be conveyed.

3. Where an heir at law attempted to convey a certain interest in real estate of his ancestor, to which such heir was not entitled, by a deed containing covenants of seisin, the fact that an heir cannot convey his expectancy did not preclude a subsequent purchaser in privity of title with the grantee under the warranty deed from obtaining title which descended to such heir on the subsequent death of the person holding the fee when the conveyance was made.

4. On the death of the owner of a homestead, the property was set off to his widow, after which J., one of the heirs, believing he had a one-seventh interest in the property, conveyed the same to the widow, who, by a subsequent deed, conveyed a one-seventh interest to such heir. Two other heirs, under the belief that they also owned a one-seventh interest in the property, conveyed their interest to J. during the widow's life, after which he conveyed, by deed containing covenants of seisin, an undivided three-sevenths of the property to another. Held, that since, on the husband's death, the widow acquired the fee to the homestead, the conveyances by the heirs during her life passed no title.

5. The widow's conveyance to J. vested in him an undivided one-seventh of the property, which, together with the interest which he inherited from the widow on her death, vested in the grantee holding under J.'s warranty deed, under Rev. St. 1899, § 4591, declaring that when a grantor undertakes to convey an estate which he does not have, but subsequently acquires, the estate so acquired shall immediately pass to the grantee as of the time of the conveyance.

6. Where in partition the only evidence as to a missing heir was that of his sister, who testified that more than 20 years before the trial, when he was about 18 years of age, he left home, and nothing had been heard from him since, and that, so far as witness knew, he was unmarried, it was insufficient to raise a presumption that such heir was unmarried, and had died intestate, and without issue.

7. Where a missing heir was entitled to an interest in real estate, and the evidence in a suit for partition did not show that he had died intestate, without issue, or unmarried, he was a necessary party to the suit under Rev. St. 1899, § 4376, requiring that every person having an interest in lands sought to be partitioned shall be made a party.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

Suit by Josie Johnson and others against John R. Johnson for partition. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

The following is the decree in partition, entered December 3, 1898, referred to in the opinion:

"Now, on this day, this cause coming on to be heard, the plaintiffs, Josie Johnson, Lottie Leach, Elizabeth Kay, Lulu Felton, Bessie Setzer, A. B. Freeman, Hannah C. Johnson, George W. Johnson, and Oliver P. Johnson, appear by their attorneys, John T. Sturgis, Hugh Dabbs, and B. J. Morrow, and the defendant, John R. Johnson, appears in person and by his attorneys, Cravens & Cravens, and submit to the court the matters in controversy upon the pleadings and evidence adduced, and the court, being fully advised in the premises, doth find that the allegations of plaintiffs' petition herein are true. The court doth further find: That plaintiffs and defendant are owners of and are seised as tenants in common of the following described tract of land, situate in the county of Newton and state of Missouri, to wit: Tract No. 1. The northwest quarter of the northeast quarter of section nine (9), in township twenty-six (26), and range thirty-three (33). That the estate from which said land descended to plaintiffs and defendant and their grantors was the estate of Pleasant Johnson, who died intestate on the ____ day of ____, 1873, leaving Nancy C. Johnson, his widow, who has since died on the ____ day of November, 1896, and the following children as his heirs at law, to wit Plaintiffs Hannah C. Johnson, Oliver P. Johnson, and George W. Johnson; defendant, John R. Johnson; and also W. Clay Johnson, Millian Johnson, and Charles E. Johnson, now deceased. That Charles E. Johnson died on the ____ day of ____, 188__, never having been married or had any children, and leaving as his heirs his brothers and sisters, above mentioned, who then became entitled to his one-seventh interest in said land, thus entitling them each to one undivided sixth interest in said land. That afterwards, on the ____ day of ___, 189__, said W. Clay Johnson died, leaving as his heirs the plaintiffs Josie Johnson, Lottie Leach, and Elizabeth Kay, who are each now the owner of and entitled to an undivided one-eighteenth interest in said land in fee. That John R. Johnson, defendant, on the 27th day of December, 1875, purchased from plaintiff George W. Johnson an undivided seventh of said land, leaving him (the said George W. Johnson) the owner of the one undivided forty-second interest in said land, which he now owns and to which he is entitled. That said John R. Johnson, defendant, is now the owner of and entitled to thirteen forty-seconds interest in said land. That Millian Johnson died on the ____ day of ____, 188__, leaving her children, Lulu Felton and Bessie Setzer, her heirs and entitled to her interest in said land, and who have since that time sold and conveyed one-seventh of said land to plaintiff A. B. Freeman, who is now the owner of and entitled to one-seventh of said land; and the said plaintiffs Lulu Felton and Bessie Setzer are now each the owner of and entitled to one eighty-fourth of said land. That plaintiffs Hannah C. Johnson and Oliver P. Johnson are each the owner of and entitled to one-sixth of said land in fee. The court further finds: That said plaintiffs Josie Johnson, Lottie Leach, Elizabeth Kay, Lulu Felton, Bessie Setzer, Hannah C. Johnson, George W. Johnson, and Oliver P. Johnson, and the defendant, John R. Johnson, are the owners of and seised in fee as tenants in common of the following described land, in Newton county, Missouri, to wit: Tract No. 2. Lot one (1) and part of lot two (2) of the northeast quarter, and ten acres off the north side of the northwest quarter of the southeast quarter, of section two (2), in township twenty-six (26), and range thirty-three (33), said tract being described by metes and bounds as follows: Beginning at a limestone 40 rods south of a limestone planted 40 rods west of the northeast corner of said section two (2), thence west 100 rods to a limestone, thence south 40 rods to a limestone, thence west 20 rods to a limestone, thence south 100 rods to a limestone, thence east 80 rods, thence north 20 rods, thence east 80 rods, thence north 78 rods, thence west 40 rods, thence north 40 rods to the place of beginning containing 115 acres, more or less, and the courses and distances of which are more particularly described in a deed recorded in Book W, at page 542, of the Land Records of Newton county, Mo. That the estate from which said land descended to said plaintiffs and defendant and their grantors was the estate of said Nancy C. Johnson, widow of Pleasant Johnson, who died on the ___ day of November, 1896, leaving as her heirs the same persons, or their descendants, as hereinbefore designated as the heirs of said Pleasant Johnson, except that Charles E. Johnson, who died without being married or having children, and W. Clay Johnson, the deceased ancestor of plaintiffs Josie Johnson, Lottie Leach, and Elizabeth Kay, and Millian Johnson, the deceased ancestor of plaintiffs Lulu Felton and Bessie Setzer, all died before their said mother, Nancy C. Johnson. The court further finds that the share of said last-described land to which each of the plaintiffs Josie Johnson, Lottie Leach, and Elizabeth Kay is entitled is one-eighteenth; that the share of said land to which each of the plaintiffs Lulu Felton and Bessie Setzer is entitled is one-twelfth; that the share of said land to which the plaintiffs Hannah C. Johnson, George W. Johnson, and Oliver P. Johnson are entitled is one-sixth; that the share of said land to which the defendant, John R. Johnson, is entitled is one-sixth. Wherefore it is ordered, adjudged, and decreed by the court that partition of the lands herein described, both tract No. 1 and tract No. 2, be had and made among the parties plaintiff and defendant herein according to their interests herein ascertained and adjudged; and, it further appearing to the court, from the nature and amount of the property sought to be divided and the number thereof, that partition in kind of said estate cannot be...