Long v. Timms

• Decision Date: 22 December 1891
• Citation: 17 S.W. 898,107 Mo. 512
• Parties: LONG v. TIMMS.
• Court: Missouri Supreme Court

17 S.W. 898

107 Mo. 512

LONG v. TIMMS.

Supreme Court of Missouri, Division No. 1.

December 22, 1891.

CONSTRUCTION OF DEED.

A grantor conveyed land to a trustee during the life of his wife, with remainder in fee to his two grandchildren V. and L., "and, in case of the death of the said V. and L. without issue," the land to revert to the grantor's daughter. Held, that the daughter acquired no present interest in the land while either one of said grandchildren remained alive, since the remainder went to the grandchildren as a class.

Appeal from circuit court, Clay county; JAMES M. SANDUSKY, Judge.

Action in ejectment by Lizzie M. Long against Joseph M. Timms. Plaintiff obtained judgment, and defendant appeals. Reversed.

Simrall & Sandusky and J. K. Cravens, for appellant. D. C. Allen, for respondent.

BRACE, J.

This is an action in ejectment, in which the plaintiff seeks to recover an undivided fourth part of certain real estate described in the petition. There is no dispute about the facts. The case was tried by the court without a jury, and the plaintiff obtained judgment for the undivided eighth part of the premises, and the defendant appeals.

Valentine S. Peyton is the common source of title. In the year 1836 he was seised in fee-simple of a tract of land in Clay county, containing 270 acres, on which he, with his wife, was then residing. He then had living one married daughter, Mrs. Frances Elizabeth Long, wife of Garrard Long, and two grandchildren, Louisa Frances Collier, and Valentine Smallwood Peyton Collier, minors of tender years, children of his deceased daughter Nancy. Mrs. Long and her children and these grandchildren were his only lineal descendants. On the 4th of October, 1836, the said Peyton, by deed duly executed, in which his wife joined, conveyed to his said daughter Frances Elizabeth Long the fee-simple to the south half of his said land, reserving, however, the use of the house, improvements, and improved land, except five acres, to his wife, during her natural life. On the 5th of December, 1836, the said Peyton and his wife duly executed the following deed: "This indenture, made and entered into this fifth day of December, in the year of our Lord eighteen hundred and thirty-six, between Valentine S. Peyton, of the county of Clay and state of Missouri, of the one part, and Woodson J. Moss, of the county and state aforesaid, of the other part, witnesseth that whereas, the said Valentine S. Peyton, having realized from the sale of a tract of land, the property of his wife, Elizabeth Peyton, the sum of three thousand seven hundred and sixty-two dollars and seventy-nine cents, is desirous and willing to secure to her some equivalent for the same: Now, therefore, in consideration of the premises aforesaid, and with the view of providing for the support and maintenance of his said wife, and in consideration of the natural love and affection which he, the said Valentine S. Peyton, has for his grandchildren, Valentine Smallwood Peyton Collier and Louisa Frances Collier, being the children of his daughter, Nancy McClanahan Collier, formerly Nancy McClanahan Peyton, of Nicholas county, Kentucky, the said Valentine S. Peyton has granted, bargained, sold, and set over, and by these presents doth grant, bargain, sell, and set over, unto the said Woodson J. Moss, all that certain piece or parcel of land situate, lying, and being in the county of Clay and state of Missouri, aforesaid, to-wit: The north half of the tract whereon we now live, to begin at the north-west corner of said tract; thence south, on the west line thereof, so far as by running the dividing line due east to the east line; thence with that line north to the north-east corner of said tract; and thence west to the beginning, — to contain one hundred and thirty-five acres. And also three certain slaves for life, to-wit, Henry, Jinny, and Sarah. To have and to hold, receive, and take the same to him, the said Woodson J. Moss, his heirs and assigns, to the only proper use and behoof of him, the said Woodson J. Moss, his heirs and assigns forever. In trust, however, and to the intent and purpose that he, the said Woodson J. Moss, shall and will employ and appropriate, or cause to be employed and appropriated, for the use and benefit of the said Elizabeth Peyton during her natural life, all the rents and profits of...