Keller v. Keller, 35453.

• Decision Date: 20 December 1938
• Docket Number: No. 35453.,35453.
• Citation: 123 S.W.2d 113
• Parties: STEPHEN KELLER, BERTHA WATSON, ORVILLE EDWARD ROWLETT, a Minor, ALMA JERRY WILLIAM ROWLETT, a Minor, WALTER MELVIN ROWLETT, a Minor, and IVAN RAY ROWLETT, a Minor, by WALTER ROWLETT, Guardian and Curator, v. FRANCES G. KELLER, JOHN LEWIS, JESS CHRISTIAN, HAZEL M. REDMON and HAROLD RAYMOND ROWLETT, Defendants, FRANCES G. KELLER, Appellant, HAZEL M. REDMON and HAROLD RAYMOND ROWLETT, Respondents.
• Court: Missouri Supreme Court

123 S.W.2d 113

STEPHEN KELLER, BERTHA WATSON, ORVILLE EDWARD ROWLETT, a Minor, ALMA JERRY WILLIAM ROWLETT, a Minor, WALTER MELVIN ROWLETT, a Minor, and IVAN RAY ROWLETT, a Minor, by WALTER ROWLETT, Guardian and Curator, v. FRANCES G. KELLER, JOHN LEWIS, JESS CHRISTIAN, HAZEL M. REDMON and HAROLD RAYMOND ROWLETT, Defendants, FRANCES G. KELLER, Appellant, HAZEL M. REDMON and HAROLD RAYMOND ROWLETT, Respondents.

No. 35453.

Supreme Court of Missouri.

Division Two, December 20, 1938.

Appeal from Holt Circuit Court. — Hon. R.B. Bridgeman, Judge.

AFFIRMED.

S.P. Reynolds and Chas. F. Keller for appellant.

(1) The deed offered in evidence by respondent recorded in Book 140, at page 217, records of Holt County, Missouri, our record page 20, conveys the fee title to Hobart Keller. Gannon v. Pauk, 200 Mo. 75; Grace v. Peery, 197 Mo. 559; Tennison v. Walker, 190 S.W. 9. (2) If the respondents are right in their contention that the deed in Book 140 at page 217, Records of Holt County, Missouri, conveyed only a life estate, then we say by all the canons of constriction that the grantor when he used the words "his heirs and assigns" three times in said deed intended that the grantee should have the power to sell and dispose of said real estate. Gannon v. Pauk, 200 Mo. 75; Tennison v. Walker, 190 S.W. 9. (3) The words, "during his lifetime and at his death to his heirs," in line four in said deed from William H. Keller and wife to Hobart Keller recorded in Book 140, page 217, Holt County, Missouri, our record page 20, are in the description part of the deed and are no part of the deed and convey nothing, and amounts to nothing in this deed and is nothing other than the identification and description of the grantee. Ashbaugh v. Ashbaugh, 273 Mo. 353; Wilson v. Frost, 186 Mo. 311. (4) In determining the intention of the parties to a deed effect must be given the usual and ordinary meaning of the language used and it cannot be said that the intention is made different by random, uncertain and inconclusive phrases inserted by an ignorant scrivener. Ashbaugh v. Ashbaugh, 273 Mo. 353; Wilson v. Frost, 186 Mo. 311. (5) If there should be any doubt about the language used by an ignorant scrivener then the habendum of the deed may be resorted to for a proper solution. Tennison v. Walker, 190 S.W. 9; Garrett v. Wiltse, 252 Mo. 699.

Breit & Roberts and Petree & Wright for respondents.

(1) The deed in question in this case from William H. Keller, as party of the first part, to Hobart Keller, during his lifetime, and at his death to his heirs, as party of the second part, conveys a life estate in the lands in question to Hobart Keller, with the remainder in fee to the heirs of Hobart Keller. Bank of Brumley v. Wendes, 314 Mo. 206, 282 S.W. 696. (2) The deed in question conclusively shows that the grantor intended to convey a life estate to Hobart Keller with remainder in fee to the heirs of Hobart Keller. Davidson v. Manson, 146 Mo. 608; Crissmond v. Kendrick, 325 Mo. 619; Shaw v. Bank of Dearborn, 23 S.W. (2d) 20. (3) The modern rule of construction of deeds is as follows: "The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it no matter in what part of the instrument it is found." Utter v. Sidman, 170 Mo. 294; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W. (2d) 1073; Keller v. Keller, 92 S.W. (2d) 160. (4) In order to give effect to the intention of the grantor as gathered from the language within the four corners of a deed the court may supply anything necessary to be inferred from the terms used. So in a proper case it has been held that the court may insert punctuation marks. 18 C.J., pp. 259-260, sec. 212. (5) Verbal arrangements may in certain cases be disregarded; nor should informality, in a deed of bargain and sale, or inaccuracy of language be allowed to defeat the manifest intent. 18 C.J., p. 259, sec. 211. (6) If what was intended clearly appears from the essence of the entire instrument, and apt and proper words are used to effectuate such intention, the instrument will not be defeated merely because of verbal arrangement or position, but the words may be transposed and read in their proper places in order to give the effect to carry out the clear intention and purpose even though badly expressed. 18 C.J., p. 260, sec. 214; 2 Greenleaf, Cru. Tit. Deed, chap. 12, sec. 26. (7) The interpretation placed upon the deed by the parties themselves is very persuasive of its meaning. "Tell me what you have done under a deed and I will tell you what that deed means," is the substance of the above rule. Carter v. Foster, 145 Mo. 392; Motor Bolt & Nut Mfg. Co. v. Car Co., 210 Mo. 736; Bleumenthal v. Bleumenthal, 251 Mo. 706; Warner v. Sorge, 258 Mo. 162; Keller v. Keller, 92 S.W. (2d) 161.

COOLEY, C.

This is an action in two counts, the first to determine title and the second for partition, involving an eighty acre tract of land. Plaintiffs Stephen Keller and Bertha Watson are brother and sister of Hobart Keller, deceased, and the Rowlett minor plaintiffs and Hazel Redmon and Harold Rowlett, named as defendants, are children of a deceased sister of said Hobart. They constitute all of his heirs, and likewise all of the heirs of William H. Keller, grantor in the deed here involved. Said William and his wife, father and mother of said Hobart, are dead. Hobart left no issue and died intestate. Defendant Frances G. Keller is his widow. The other two defendants, Lewis and Christian, claimed only as tenants of Frances G. Keller. The interests of Hazel Redmon and Harold Rowlett are the same as those of the minor Rowlett plaintiffs. They were named as defendants in the petition because they had failed to join therein as plaintiffs. By order of record, before the trial, they were made parties plaintiff, were so considered throughout the trial and in the judgment and are to be considered as plaintiffs and as respondents here. The court found for plaintiffs, treating said Hazel and Harold as plaintiffs, and rendered interlocutory judgment of partition, from which defendant Frances G. Keller alone appealed.

The case involves and is determinable by the construction of a deed to said Hobart from his father William H. Keller, respondents contending that it conveyed to Hobart only a life estate and appellant that it passed the fee. The original deed could not be produced and the record thereof was introduced in evidence. By agreement of the parties a photostatic copy of said record is incorporated in appellant's abstract. Said copy shows that in making the deed a printed form was used, such as was then and is now in general use, having blank spaces to be filled. By the photostatic copy of the record it is shown that in recording the deed the words and letters employed in filling the blank spaces and making certain interlineations in the printed form used in making the deed were made by typewriter. Whether in the original deed they were in pen and ink or typewritten is not disclosed. The recorder evidently used a typewriter instead of a pen in making his records. In copying the deed herein we italicize the words and letters which appear typewritten in said photostatic copy. The deed reads:

"THIS INDENTURE, Made on the Fifth day of August A.D. One Thousand Nine Hundred and eighteen by and between William H. Keller and his wife Mattie Keller of Holt County, Missouri parties of the first part, and Hobart Keller during his life time, and at his death to his heirs of the County of Holt in the State of Missouri party of the second part:

"WITNESSETH, That the said parties of the first part, in consideration of the sum of Eight Thousand Dollars, to them paid by the said party of the second part, the receipt of which is hereby acknowledged do by these presents Grant, Bargain and Sell, Convey and Confirm unto the said party of the second part, during his life time and at his death to his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situated in the County of Holt and State of Missouri, to-wit:

All of the west half (W½) of the Southeast quarter (SE¼) of Sec. thirty-two (32) Township Sixty-two (62) of Range Thirty-seven (37), Holt Co. Mo., and containing eighty (80) acres more or less.

                                          "I.R. Stamps
                                        "$8.00 attached
                

"TO HAVE AND TO HOLD the premises aforesaid with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining, unto the said party of the second part, and unto his heirs and assigns, Forever; the said Grantor hereby covenanting that they are lawfully seized of an indefeasible estate in fee in the premises herein, conveyed; and they have good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by them or those under whom they claim, and that they will Warrant and defend the title to the said premises unto the said party of the second part, and unto his heirs and assigns, Forever, against the lawful claims and demands of all persons whomsoever.

"IN WITNESS WHEREOF, The said parties of the first part have hereunto set their hands and seals, the day and year first above written.

"Signed, Sealed and Delivered in Presence of Us:

                                        "William H. Keller (SEAL)
                                        "Mattie Keller     (SEAL)
                                                                    (SEAL)
                                                                    (SEAL)"
                

(Acknowledgment in usual form.)

In view of appellant's contention that it cannot be determined where the words "during his lifetime and at his death to" as they occur the second time in the deed belong, we make this further explanation of the copy before us: Said...