Kluck v. Metsger

• Decision Date: 09 October 1961
• Docket Number: No. 1,No. 48486,48486,1
• Citation: 349 S.W.2d 919
• Parties: Frank J. KLUCK, Albert Kluck, Mary Brown, John Kluck, Peter Kluck, Irene Mills, Lee Kluck, Martin Kluck, Jr., Clara Blinzler, Eugene Kluck and Rosemary Lang, (Plaintiffs) Appellants, v. Helene METSGER, A. Francis Metsger, Jr., and Margaret K. Metsger, (Defendants) Respondents
• Court: Missouri Supreme Court

Page 919

349 S.W.2d 919

Frank J. KLUCK, Albert Kluck, Mary Brown, John Kluck, Peter

Kluck, Irene Mills, Lee Kluck, Martin Kluck, Jr., Clara Blinzler, Eugene Kluck and Rosemary Lang, (Plaintiffs) Appellants, v. Helene METSGER, A. Francis Metsger, Jr., and Margaret K.

Metsger, (Defendants) Respondents.

No. 48486.

Supreme Court of Missouri, Division No. 1.

Oct. 9, 1961.

Oral H. McCubbin, Robert Stemmons, Mt. Vernon, for appellants.

Edward V. Sweeney, John D. Rahoy, Monett, for respondents.

HYDE, Judge.

Action to try and determine title to real estate to which plaintiffs claimed title. Defendants by their answer claimed title and asked a judgment declaring them owners in fee simple. The court adjudged title in defendants and plaintiffs have appealed.

The case was submitted on the deed involved, set out in the pleadings, and the following agreed facts:

'Martin Kluck, Sr., died intestate in Lawrence County, Missouri, on October 18, 1952; Josephine C. Kluck was his widow. That Plaintiffs, Frank J. Kluck, Albert Kluck, Mary Brown, John Kluck, Peter Kluck, Irene Mills, Lee Kluck, Martin Kluck, Jr., and Clara Blinzler, were children of Martin Kluck, Sr. and Eugene Kluck and Rosemary Lang are children of Edward Kluck, a deceased son of Martin Kluck, Sr., all children being born by a former marriage.

'Martin Kluck, Sr., married Josephine C. Kluck in the year of 1940 and under date of August 2, 1943, Martin Kluck, Sr., made and executed a warranty deed, which is duly filed of record under date of August 13, 1943, in Book 195, at page 336, of the Deed Records in the Recorder's Office of Lawrence County, Missouri, a copy of which deed is attached hereto, and said deed attempts to convey to the grantee, Josephine C. Kluck, the following described real estate, situated in Lawrence County, Missouri, to-wit:

'The West Half (W 1/2) of the Southwest Quarter (SW 1/4) of Section 24, Township 26, Range 29, containing 80 acres, more or less.

And said deed contained the clause as follows:

'The said party of the first part reserving unto himself a co-tenancy by the entirety with said party of the second part in and to said premises; the intention of this deed being to vest fee simple title to said premises in Martin Kluck, Sr. and Josephine C. Kluck, husband and wife, by the entirety with right of survivorship.

'After the death of Martin Kluck, Sr., Josephine C. Kluck by a certain quit-claim deed, deeded said lands to her son, A. F. Metsger, on the 29th day of May, 1957; said deed being recorded in the Quit-Claim Deed Records of Lawrence County, Missouri, in Book 228, at page 528, and the said Josephine C. Kluck died on the 7th day of April, 1958, and her son, A. Francis Metsger, died on the 19th day of April, 1958, leaving as his sole and only heirs at law the defendants, Helene Metsger, widow, A. Francis Metsger, Jr., son and Margaret K. Metsger, daughter.

'That defendants claim title to said lands under the aforesaid deed from Martin Kluck, Sr., directly to Josephine C. Kluck and plaintiffs contend that said deed conveyed no interest to Josephine C. Kluck.'

The deed recited it was 'by and between Martin Kluck, Sr. of Lawrence County, Missouri, party of the first part, husband of the grantee herein, and Josephine C. Kluck, his wife * * * party of the second part.' It recited as consideration 'Love and Affection and the Sum of One Dollar' and that 'the party of the first part, does by these presents, Grant, Bargain and Sell, Convey and Confirm, unto the party of the second part, a co-tenancy by the Entirety with said party of the first part in and to the following described lots, tracts and parcels of land.' After the description of the land the reservation set out in the agreed statement of facts appeared. The habendum clause stated: '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, as cotenant by the entirety with right of survivorship; * * *.'

Plaintiffs say 'the main question involved in the case at bar is whether the direct conveyance from Martin Kluck, Sr., to himself and Josephine C. Kluck created a tenancy by the entirety or any interest in the land in himself and Josephine C. Kluck.' Plaintiffs contend that 'an estate by the entirety at common law and in Missouri involves the unities of time, title, interest and possession, as well as the husband and wife unity of ownership,' citing Ahmann v. Kemper et al., 342 Mo. 944, 119 S.W.2d 256; Stifel's Union Brewing Company v. Saxy, 273 Mo. 159, 201 S.W. 67, L.R.A.1918C, 1009; Greene v. Spitzer et al., 343 Mo. 751, 123 S.W.2d 57; Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229; Murawski v. Murawski, 240 Mo.App. 533, 209 S.W.2d 262. Plaintiffs argue that the unities of time and title are not present when 'the interest of the husband was created...