Johnson v. Johnson

• Decision Date: 27 October 1902
• Citation: 70 S.W. 241,170 Mo. 34
• Parties: JOSIE JOHNSON et al. v. JOHN R. JOHNSON, Appellant
• Court: Missouri Supreme Court

70 S.W. 241

170 Mo. 34

JOSIE JOHNSON et al. v. JOHN R. JOHNSON, Appellant

Supreme Court of Missouri, Second Division

October 27, 1902

Appeal from Newton Circuit Court. -- Hon. J. C. Lamson, Judge.

Reversed and remanded.

O. L Cravens for appellant.

(1) (a) The evidence shows that at the time of the conveyance George W. was not seized in fee of the undivided three-sevenths. He had one-seventh by the deed from his mother, and later, in 1896, on the death of his mother, he inherited one-sixth in fee as one of her heirs. These interests of his should have been vested in defendant. By the terms of the statute, under the covenants in the deed, the title subsequently acquired by him as heir was immediately vested in his grantee with the same force as if he had in fact been seized of the three-sevenths at the time he made the deed. This, by way of estoppel running with the land. Bogy v. Shoab, 13 Mo. 365; Gibson v. Chouteau, 39 Mo. 365; Norfleet v. Russell, 64 Mo. 176; Altringer v Capeheart, 68 Mo. 441; Irvine v. Irvine, 9 Wall. 618; Rawle on Cov. for Title, secs. 248, 252, 254; Newell on Ejectment, p. 673; Jones Real Property and Conveyancing, sec. 990. (b) In a case where there were several quit-claim deeds following the warranty, it was held the after-acquired title of the grantor in the warranty deed was carried forward through the subsequent quitclaim deeds to the remote grantee. Fordyce v. Rapp, 131 Mo. 354; Powers v. Patten, 71 Me. 583; Foote v Clark, 102 Mo. 394. (2) (a) At the time of the quitclaim deed by George W. Johnson to his mother, he had no right title or interest in the land. This is a conceded fact. (b) The quitclaim deed from George W. Johnson to his mother was never delivered, and even if he had a title, it never took effect as a deed. Sneathen v. Sneathen, 104 Mo. 201. (c) If it was a mere taking back of the interest the parties supposed she had acquired by a former deed, it is a transaction to which defendant is not a party and by which he is not bound. Thompson v. Wooldridge, 102 Mo. 505; Odle v. Odle, 73 Mo. 289; Lionberger v. Baker, 88 Mo. 447. (3) In the face of the express covenant in the warranty deed that he is seized of the estate of three-sevenths conveyed, no notice or knowledge of defendant could overcome the written stipulations of the deed. Whiteside v. Magruder, 75 Mo.App. 364; Blanchard v. Haseltine, 79 Mo.App. 248. (4) The law was absolute at the time of the death of Pleasant Johnson, in 1873, that his widow took the title in fee to the tract involved here. This estate would descend to and vest in her independently of any proceeding in the court to have the same appraised and set off to her as a homestead. Mills v. Mills, 141 Mo. 195.

B. J. Morrow and John T. Sturgis for respondents.

(1) The point made that no delivery of the deed from George W. to Nancy Johnson, was shown is without merit. No such objection was made at the time and general objection that same is "incompetent" or "not proper evidence" will not avail. Lumber Co. v. Rogers, 145 Mo. 445; Block v. Estes, 92 Mo. 318; Chauquette v. Borada, 29 Mo. 491; Holmes v. Braidwood, 82 Mo. 610. The deed was recorded more than twenty years before the trial and the grantor is a party to this suit and himself claims its delivery. Recording a deed raises a strong presumption of delivery. McReynolds v. Grubb, 150 Mo. 352; Burke v. Adams, 80 Mo. 504; Kane v. McCown, 55 Mo. 181; Lumber Co. v. Anderson, 13 Mo.App. 429. And the evidence shows a delivery in this case. Crowder v. Searcy, 103 Mo. 97. (2) The case should not be reversed for failure to make Charles Edward Johnson or his heirs parties. The land has now been sold by defendant's written stipulation pending this appeal. If the presumption of death arising from more than twenty years absence unheard of by his relatives does not vest his interest in his known heirs, yet nothing could now be done in this suit to correct the matter. The question could only arise and be determined between him and the purchaser of the land. Sensenderfer v. Kemp, 83 Mo. 589. (3) The real question at issue is whether the warranty deed of George W. Johnson, conveying as it does the three specified interests of himself and his brother and sister, referring to the source of his title, would convey and carry through the subsequent quitclaim deed from his grantee to the defendant the after-acquired title from his mother. Our statute, section 4591, Revised Statutes 1899, is but declaratory of the common law. It is not alone the covenants of the deed, but rather the estate sought to be conveyed, that determines whether or not it operates on after-acquired title. The covenants may be insufficient for such purpose as in ordinary quitclaim deeds. Brawford v. Wolfe, 103 Mo. 397; Bogy v. Shoab, 13 Mo. 379. So also the estate conveyed may be so specified or limited as to take it out of the operation of the statute, and such we think it is in this case. Valle v. Clemens, 18 Mo. 490; Gibson v. Chouteau, 39 Mo. 566; Butcher v. Rogers, 60 Mo. 139; Moore v. Harris, 91 Mo. 620; Gilbert v. Jones, 86 N.C. 214; Libby v. Thornton, 64 Me. 479; Comstock v. Smith, 13 Pick. 119, 23 Am. Dec. 670; Blanchard v. Brooks, 29 Mass. (12 Pick.) 47. It has been held by many courts, though the question seems not to have arisen in this State, that an heir can not, before the death of the ancestor, convey his expected inheritance. Beard v. Griggs, 24 Ky. 22; Hall v. Chaffee, 14 N.H. 215; Hart v. Gregg, 32 Ohio St. 511. The law ought not to force on a grantor against his express intentions what it would not let him do if he had so desired. (4) The quitclaim from Jackson to defendant specifies with particularity the exact estate and title he conveys, to-wit: "Three undivided sevenths in and to the real estate of Pleasant Johnson, deceased, late of Newton county, Missouri, being the interest I hold and acquired by purchase from George W. Johnson, heir at law of said deceased." In the face of these recitals in the quitclaim to defendant, how can he claim that there passed to him the title derived from the mother which only passed to George by virtue of the statute twenty years later? Jackson v. Bradford, 4 Wend. 619. (5) Defendant claims still another seventh of the land by reason of the quitclaim deed from the mother to George W. in 1875. This deed was shown to have been a reconveyance to George W. of his interest in the whole land, which he had a year or so previously conveyed to his mother with the understanding that she would convey it back to him. It is not material now whether George's purpose in so doing was fraudulent or not, or whether he could have compelled such reconveyance. It was reconveyed, and so far as tract No. 1 is concerned, all parties acquiesce in it.

DECREE.

The decree in partition, referred to in the opinion, is as follows:

"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 and 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 plaintiff's petition herein are true.

"The court doth further find that plaintiffs and defendant are owners of and are seized 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, 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 eighteen hundred and eighty --, 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....