Kane v. Roath

• Decision Date: 09 October 1925
• Docket Number: 24761
• Citation: 276 S.W. 39,310 Mo. 684
• Parties: EMMA B. KANE et al. v. LUCILE ROATH et al., Appellants
• Court: Missouri Supreme Court

276 S.W. 39

310 Mo. 684

EMMA B. KANE et al. v. LUCILE ROATH et al., Appellants

No. 24761

Supreme Court of Missouri

October 9, 1925

Appeal from Livingston Circuit Court; Hon. Arch B. Davis Judge.

Affirmed.

Davis & Ashby for appellants.

(1) The deed made from Spencer H. Gregory and wife to Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband, did not create an estate in fee tail, but conveyed a fee simple title to Atilla Gudgell. Adams v. Cary, 226 S.W 833; McDowell v. Brown, 21 Mo. 57; Rines v Mansfield, 96 Mo. 394; Tennison v. Walker, 190 S.W. 9. (2) If the said deed did not convey a fee simple title to the said Atilla Gudgell then it conveyed to her and her children then living by Robert E. Gudgell, a fee simple estate as tenants in common. Hamilton v. Pitcher, 53 Mo. 334; Franklin v. Cunningham, 187 Mo. 184; Fanning v. Doan, 128 Mo. 323; Johnson v. Calvert, 260 Mo. 442; Tinder v. Tinder, 131 Ind. 381, 22 A. L. R. 715; Thorp v. Yarbrough, 79 Ga. 382; Tucker v. Tucker, 78 Ky. 503; Brann v. Elzey, 83 Ky. 440. (3) Atilla Gudgell, Emma B. Gudgell (Kane) and Mason Gudgell being tenants in common, the Statute of Limitation began to run on the 6th day of January, 1869, when the deed by Atilla Gudgell and Robert E. Gudgell was made to Preston Anderson, and this action, when filed, was barred. Franklin v. Cunningham, 187 Mo. 184; Johnson v. Calvert, 260 Mo. 442; Real Estate Co. v. Megaree, 280 Mo. 56; Saucier v. Kremer, 249 S.W. 643, 27 A. L. R. 8. (4) Lizzie M. Gudgell (Wright) and Jessie Gudgell were not born until after the deed was made, and therefore, no interest was vested in them by said deed. Johnson v. Calvert, 260 Mo. 456.

Scott J. Miller, Royer Stone Miller and Thos. H. Hicklin for respondents.

(1) The deed from Gregory and wife to Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband, created an estate tail special under the common law, which was by our statute converted into a life estate in Atilla Gudgell, with remainder in fee simple in her lawful heirs by Robert E. Gudgell, living at the time of her death. Reed v. Lane, 122 Mo. 311; Utter v. Sidman, 170 Mo. 284; Lehndorf v. Cope, 122 Ill. 329; 24 Laws of England, by Earl of Halsbury, pp. 245, 246, secs. 449, 450. (2) The use of the words parties or part make little difference in a deed, such as this, which plainly shows that it was drawn by a conveyancer without great experience. Ray v. Cranch, 10 Mo.App. 321; Garrett v. Wiltse, 161 S.W. 697; Frame v. Humphries, 164 Mo. 336. (3) The use of the words "assigns" or "heirs and assigns" does not have the effect of enlarging what would otherwise be a life estate into an estate in fee simple. Chew v. Keller, 171 Mo. 215; Davidson v. Manson, 146 Mo. 608; Bean v. Kenmuir, 86 Mo. 671. (4) The habendum clause in a deed may be resorted to for the purpose of ascertaining the disposition of the remainder, even where all other clauses appear to vest a fee simple estate in the first taker, this even under the strictest common-law rules of conveyancing. McCullock v. Holmes, 111 Mo. 448; Tennison v. Walker, 190 S.W. 13. (5) Had the intention been to make Atilla Gudgell and her two children living at the time of the execution of the deed in question, tenants in common, their names could have and certainly would have been inserted in the deed. Rines v. Mansfield, 96 Mo. 399; Tygard v. Hartwell, 102 S.W. 990.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

The plaintiffs, Emma B. Kane and Lizzie M. Wright, sued to establish their title and right of possession to undivided interests in forty acres of land in Livingston County. The plaintiffs are the sole heirs of Atilla Gudgell, deceased, by her husband, Robert E. Gudgell, and the case turns upon the construction given to a deed, made on December 27, 1867, by Spencer H. Gregory and Elizabeth, his wife, conveying this and other land to said "Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband."

The cause was submitted upon an agreed statement of facts.

It is conceded that the common source of title was Spencer H. Gregory. Atilla Gudgell had four children by her husband, Robert E. Gudgell. Two of them, the plaintiff Emma B. Kane, and Mason Gudgell, were in being at the time of the making of the deed from Spencer H. Gregory and wife to Atilla Gudgell. The two other children were born after the making of that deed. The two, subsequently born, were plaintiff Lizzie M. Wright, and Jessie Gudgell. Mason Gudgell and Jessie Gudgell both died without issue and unmarried, and before the death of either Atilla Gudgell or Robert E. Gudgell.

On January 20, 1869, Atilla Gudgell and her husband executed to Preston Anderson a general warranty deed to the land in controversy. On July 31, 1886, the plaintiff Emma B. Kane, then a single woman, executed a quit-claim deed to the land in controversy to one Jacob A. Roath. At that time, all four of the children of Atilla Gudgell, by her husband, Robert E. Gudgell, were living. It is conceded that the defendants, Lucile Roath and Ruth Roath, have succeeded to all the interests conveyed to Preston Anderson, and conveyed to Jacob Roath, by the deeds that have been mentioned, and that said defendants and their grantors have been in the continuous, open and notorious possession of the land since the time of the execution of the deed to Preston Anderson.

Robert E. Gudgell died January 12, 1905, and Atilla Gudgell died April 25, 1914. This suit was instituted on January 23, 1922. The plaintiff Emma B. Kane claimed an undivided one-fourth interest and plaintiff Lizzie M. Wright claimed an undivided one-half interest therein. They alleged that defendants, Lucile Roath and Ruth Roath, who are minors, each own an undivided one-eighth interest; and the plaintiffs, by their petition, in three counts, asked respectively for determination of title, for possession, and for partition of the land in accordance with the interests set up in the petition. The defendants, by answer to each of the several counts set up adverse possession, and the Statute of Limitations, and, in their answer to the third count, for partition, defendants also asked for partition, as between themselves.

The trial court adjudged that plaintiff Emma B. Kane was the owner of an undivided one-fourth interest; that Lizzie M. Wright was owner of an undivided one-half interest, and that defendants Lucile Roath and Ruth Roath each owned an undivided one-eighth interest, and upon that basis the court entered a decree for a sale in partition.

The deed in question, omitting its description of the land, is as follows:

"This indenture made on the 27th day of December, A. D. one thousand eight hundred sixty-seven, by and between Spencer H. Gregory and Elizabeth B., his wife, of the County of Livingston, State of Missouri, as parties of the first part and Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband of the County of Livingston and State of Missouri, as party of the second part.

"Witnesseth: That the parties of the first part, for and in consideration of the sum of five hundred dollars to them paid by said party of the second part, the receipt whereof is hereby acknowledged have granted, bargained and sold, confirmed and conveyed by these presents, do grant, bargain and sell, confirm and convey unto the said party of the second part, and her heirs and assigns, the following described real estate, situated in the County of Livingston, State of Missouri, to-wit: . . .

"To have and to hold the same with all the rights and privileges and appurtenances thereto belonging or in any wise appertaining to the only proper use, benefit and behoof of Atilla Gudgell and her lawful heirs by said Robert Gudgell, her husband, to said party of the second part, to her heirs and assigns forever. The said parties of the first part hereby covenanting that they and their heirs, executors and administrators shall and will

"Warrant and defend the title to the said premises and every part thereof, unto the said party of the second part, her heirs and assigns forever, against the lawful claims and demands of all persons whomsoever."

The contention of counsel for defendant is that the deed did not create an estate tail, but that it conveyed the fee simple to Atilla Gudgell, or, that if the deed did not convey title in fee simple to Atilla Gudgell alone, it did convey an estate in fee simple to her and her two children then in being, as tenants in common. Counsel for plaintiffs rest their case upon the contention that the deed created an estate tail special under the common law, which the statute converted into a life estate in Atilla Gudgell, with remainder in fee simple in her lawful heirs by Robert E. Gudgell, living at the time of her death. If the foregoing claim of plaintiffs be correct it disposes of the case, and results in an affirmance of the judgment.

If the language of the deed created in the grantor what would, at common law, have been an estate tail special, then it is conceded that the statute converted it into an estate for life only, of Atilla Gudgell, with remainder in fee to her heirs begotten by her husband, Robert E. Gudgell.

There are, in this deed, words of inheritance and words which, by necessary implication, denote procreation. [Reed v. Lane, 122 Mo. 311.] The words used denote heirs of the body of Atilla Gudgell, and only those heirs of her body who were such by her husband Robert E. Gudgell. The intent of the deed is to be gathered from the entire instrument, and effect must be given to all its words and clauses if that be possible in reason, so that each is made operative and effective for some purpose. [Eckle v. Ryland, 256 Mo. 424.] In this deed the party of the second part is described as being "...