Lemon v. Lemon

• Decision Date: 16 February 1918
• Docket Number: No. 18922.,18922.
• Citation: 201 S.W. 103,273 Mo. 484
• Parties: LEMON et al. v. LEMON.
• Court: Missouri Supreme Court

201 S.W. 103

273 Mo. 484

LEMON et al. v. LEMON.

No. 18922.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Alphonso V. Lemon and others against Nannie A. Lemon, in which the heirs of the plaintiff named were made parties in his stead. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

This is an action to determine title under the provisions of section 2535, R. S. 1909, to certain real estate situate in Pike county, and for partition thereof, in the event that it should be found that plaintiffs have any interest therein. Upon a trial below the judgment was for defendant, and plaintiffs appeal.

Plaintiff O. O. Turner has no interest whatever in the lands in controversy, save and except that he is the lessee thereof for a term beginning on the 1st day of March, 1912, and ending on the 1st day of March, 1916, at an annual rental charge of $300 per year. He became a party plaintiff for the purpose of protecting his interest in the matter of the payment of the above rental charge. Since, however, his interest is to be tested by the interest of plaintiff Alphonso V. Lemon, and of defendant Nannie A. Lemon, we need not consider him further in what we shall say touching the questions involved upon this appeal. Since this case has been pending here upon appeal plaintiff Alphonso V. Lemon has departed this life. His heirs by proper motions have, by our order herein, been made parties plaintiff and appellant in his stead, and the case has been revived in their names. But no occasion arises for a change in the title of the cause, and we shall, therefore, for the purpose of this discussion, and for the purpose of brevity, and for the reasons above stated, speak of Alphonso V. Lemon as plaintiff, and of Nannie A. Lemon as defendant.

On the 20th day of September, 1905, one Joseph R. Lemon, who was the father of plaintiff and is the common source of title to the land in controversy herein, together with his wife, Nannie A. Lemon, who, as stated, is the defendant herein, made, executed, and delivered to the plaintiff the below deed of conveyance to the lands in dispute herein, to wit:

"Warranty Deed.

"This indenture, made on the 20th day of September, A. D. one thousand nine hundred and five by and between Joseph R. Lemon, of Pike county, and state of Missouri, and Nannie A. Lemon, his wife, of Pike Co., Mo., parties of the first part, and Alphonso V. Lemon, of the county of Audrain 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 two hundred and fifty ($250.00) dollars and love and affection 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, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Pike and state of Missouri, to wit: All the northeast one-fourth of the northwest quarter; also the south three-fourths of the northwest one-fourth of the northeast quarter all in section thirty-five (35), township fifty-four (54), range five (5) west, containing in all seventy acres, more or less. It is the mutual understanding that Nannie A. Lemon as wife of said Joseph R. Lemon does not intend in any way to relinquish her right in place as homestead or as dower if said Nannie A. Lemon should survive her husband Joseph, R. Lemon. To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining, unto the said party of the second part, and unto his heirs and assigns forever; the said Joseph R. Lemon hereby covenanting that he is lawfully seised of an indefeasible estate in fee in the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by him or those under whom he claims, and that he 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, reserving however a life estate in the above-described property. In other words, the estate in remainder is the estate intended to be conveyed to second party, and first parties Joseph R. Lemon and Nannie A. Lemon are to have the use and profit of said place as long as both or either of them shall live.

"In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written.

                                       "Joseph R. Lemon
                                       "Nannie A. Lemon."
                

At the time of the execution and delivery of the above deed of conveyance Joseph R. Lemon, and the defendant, his wife, were residing upon the land described in said conveyance as a homestead. They continued to reside thereon, occupying this land as a homestead until on or about the 25th day of February, 1912, when they abandoned the same, purchased a house in the town of Vandalia, moved thereto, and resided therein until the death of Joseph R. Lemon, in March, 1914. But one witness testifies as to the intention of Joseph R. Lemon and defendant, his wife, in acquiring the house in Vandalia, and in moving from the land in dispute to the Vandalia house. This witness says unequivocally that this removal was made with the intention on the part of said grantors in the above deed to make the Vandalia house their home for the balance of their lives. Upon removing from the land in question here to the new home in Vandalia, Joseph R. Lemon leased the disputed premises to plaintiff O. O. Turner, as heretofore stated.

The answer of defendant sets up a claim of a life estate in the lands in dispute, averring that she acquired such estate by virtue of the reservations made in the conveyance which we set out above. The contentions made by plaintiff are that the above conveyance vested in him, as the grantee therein, the fee-simple estate in the land in controversy, subject only to the life estate which was reserved for himself therein by Joseph R. Lemon.

The court found in favor of defendant, adjudging that plaintiffs take nothing by their said suit, and for costs. It is plain that upon the case stated, the only matters presented turn wholly upon the construction to be given the deed, which we set out above; and to this construction what we say will be directed.

J. O. Barrow, of Vandalia, and Hostetter & Haley, of Bowling Green, for appellants. Gatson & Hollingsworth, of Vandalia, for respondent,

PARIS, J. (after stating the facts as above).

I. As forecast, there is but one question presented upon the record in this case. That question is as to the nature of the estate conveyed to the plaintiff by the deed of conveyance, which we set out above. As a corollary to the above question, however, yet another arises, to wit, What estate, if any, did this deed convey to, or leave residual in, the defendant, who, as the wife of the grantor, joined therein? Answering this last question first, we are constrained to hold that it conveyed no estate whatever to her, and only left residual in her exactly what she had before the deed was made, viz. inchoate dower, and a contingent estate of homestead. This latter contingent life estate having failed and fallen out of the case by the abandonment as a homestead of the land in dispute in the lifetime of the grantor, we need not trouble ourselves about it further. Smith v. Bunn, 75 Mo. 559; Kaes v. Gross, 92 Mo. 648, 3 S. W. 840, 1 Am. St. Rep. 767; Duffey v. Willis, 99 Mo. 132, 12 S. W. 520; New Madrid Banking Co. v. Brown, 165 Mo. 32, 65 S. W. 297.

II. In form, and save for the language which for emphasis we have italicized, the deed here is the usual and ordinary deed of conveyance with covenants of general warranty. Obviously, it was written upon a blank printed form of such deed, in which, at the only places where blank spaces, meet for this purpose, appeared, the italicized and qualifying language was added or appended. The deed as written reflects the condition of the grantors as of the date it was executed. For this deed was executed some seven years before the grantors abandoned the land as a homestead and moved therefrom to a new homestead in Vandalia, and at a time, we may infer, when the intention of continuing it as a homestead was in the minds of the parties. In the italicized clause which first appears therein, the defendant expressly disavows any intent "to relinquish her right in place as homestead, or as dower." Explaining this, of course with the existing situation of the parties largely in mind, the second clause says:

"In other words, the estate in remainder is the estate intended to be conveyed * * * and Joseph R. Lemon and Nannie A. Lemon are to have the use and profit of said place so long as both or either of them shall live."

But so much is largely arguendo, for we are not left to this reason for the conclusion which we have reached. For, while we can see no reason for the defendant's joining in the execution of this instrument, except for the purpose of conveying her inchoate dower and homestead, she expressly disavows these purposes, and we concede that neither her inchoate dower nor her homestead passed, or was lost, or in any way affected, by her execution of this deed. If she had these inchoate and contingent estates before she executed the deed, she had them as well after she executed it. That she did have inchoate dower (now by the death of her husband become consummate) we do not doubt, and plaintiffs practically concede this in their brief. She was in the last analysis a useless party to this deed, having, as we have seen expressly disavowed in the deed itself, the only...