Lynch v. Huston

• Citation: 119 S.W. 994,138 Mo. App. 167
• Parties: LYNCH v. HUSTON
• Decision Date: 17 May 1909
• Court: Court of Appeal of Missouri (US)

119 S.W. 994

138 Mo. App. 167

LYNCH v. HUSTON

Kansas City Court of Appeals. Missouri.

May 17, 1909.

On Rehearing, June 14, 1909.

1. ANNUITIES (§ 4)—APPORTIONMENT.

As a general rule, an annuity is not apportionable, either at common law or in equity, unless the instrument granting it shows an intention to the contrary, though there are some exceptions, as in case of an annuity payable to a widow in lieu of dower, or to minor children for support, which may be apportioned.

2. ANNUITIES (§ 4)—APPORTIONMENT—CONSTRUCTION OF DEED.

A deed conveying land in consideration of the payment to the grantor of a certain sum per annum, "payable annually on the first day of March of each year until the death" of the grantor, "when all payments cease," referred to the time of death, instead of the time of payment, and showed an intention that payments should continue to the grantor's death, and that the annuity should be apportioned upon the grantor's death before the time of payment.

3. ANNUITIES (§ 1)—DISTINGUISHED FROM "RENT CHARGES."

A "rent charge" is a charge against land in the hands of the purchaser and arises out of the land itself, while an "annuity" is a yearly payment of a certain sum of money granted to one for life, years, or in fee, chargeable upon the person of the grantor.

4. ANNUITIES (§ 1)—DISTINGUISHED FROM RENT CHARGE.

A deed of land in consideration of the payment to the grantor of a certain sum annually on the 1st day of March each year until the grantor's death, when all payments should cease, and retaining a lien on the land conveyed to secure such payments, imposed merely a personal obligation upon the grantee to make the payments and created an "annuity," and not a "rent charge," the provision securing the payments by a lien not affecting the personal character of the obligation, and that the grantor rented the land and applied the rent on the annual payments with the grantee's acquiescence would not affect the character of the instrument.

On Rehearing.

5. CONTRACTS (§ 147)—CONSTRUCTION—INTENTION OF PARTIES.

Intention may be shown in a number of ways, and, aside from technical rules of construction, there is no absolute rule for interpreting the intention of the parties to a contract, as it may be shown in conversation by look, gesture, or emphasis, and in writing a mere word or sentence may change the construction of the contract and control legal implications.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Wm. G. Lynch against J. P. Huston, executor. From a judgment for plaintiff, he appeals. Affirmed.

R. M. Reynolds, A. R. James, and R. B. Ruff, for appellant. D. D. Duggins, for respondent.

ELLISON, J.

The petition filed in this cause seeks to recover of defendant, as executor of the estate of Michael Lynch, the sum of $1,000, as rent alleged to have been received by said executor from the tenant of plaintiff's land for the year beginning the 1st of March, 1907, and ending the 1st of March, 1908. The trial court rendered judgment for plaintiff for the sum of $282, and he, being dissatisfied with that amount, appealed.

It appears: That plaintiff is the son of the deceased, Michael. That the latter owned a farm of 200 acres in Saline county. That on the 13th of April, 1896, he conveyed it to plaintiff in consideration of natural love and affection and other named considerations, among them being that "the grantee, Wm. G. Lynch, hereby agrees to pay to the grantor, Michael Lynch, during his natural life, the following sums of money: $900 per annum for five years commencing March 1, 1897, and the first payment to be due at that date, and after the first five payments, then the sum of $750 per annum, payable annually on the 1st day of March of each year until the death of said Michael Lynch, when all payments cease. And for the payment of said sums of money to said Michael Lynch as aforesaid, a lien is hereby retained, constituted, and made in favor of said Michael Lynch on the lands hereby conveyed." At the date of the deed, Michael Lynch was not in the manual possession of the land, it having been rented by him to a tenant, and he continued to rent it until his death. He collected the rents and applied them in payment of the sums due him under the deed until his death, which occurred on the 15th of February, 1908, a period of nearly 12 years. On the 21st of August, 1905, he rented it for a period of five years, at $1,000 per year, commencing the 1st of March, 1906, and ending the 1st of March, 1911, the rent becoming due on the 1st of January of each year. As just stated, Michael died on the 15th of February, 1908, and this defendant, in April following, collected the past year's rent, due the 1st of January, 1908, and put the funds into the estate. It is evident from the amount of the judgment rendered for plaintiff that the court, in effect, charged defendant with the $1,000 he received from the tenant, and then credited him with $750, the annual payment due Michael, less $31.25 allowed on account of the latter's death one-half month before such annual payment was due; that is, he credited defendant with $718.75, the proportionate amount due deceased at date of his death, which left a balance of $281.25, for which judgment was rendered.

There has been much discussion by counsel concerning the question whether the annual payments reserved in the deed to plaintiff constituted an "annuity" or a "rent charge." Plaintiff's theory is that they were an annuity, and that an annuity could not be apportioned; that is to say, that, if the annuitant died before the annual day of payment, nothing would be due for that year, and that therefore, as Michael died on the 15th of February, 1908, preceding the 1st of March, the day of annual payment, nothing was due his estate for that entire year, and therefore the trial court erred in making any allowance therefor out of the sum collected by defendant. The general rule at common law, as well as in equity, is that an annuity is not apportionable in respect to time. It is said in Nehls v. Sauer, 119 Iowa, loc. cit. 441, 93 N. W. 347, that: "The practically universal holding of the courts appears to be that an annuity will not be apportioned, and if the annuitant dies during the year, even though it be on the last day, before the payment falls due, the right to demand the annuity dies with him, and his executor can recover no part of it." There are exceptions to this rule which arise out of the nature and object of the annuity itself. Thus an annuity to be paid the widow in lieu of her life dower estate, or to minor children for support, may be apportioned so that she or they will receive a proportionate amount for the year in which either may die. Blight v. Blight, 51 Pa. 420; Gheen v. Osborn, 17 Serg. & R. (Pa.) 171; Sweigart v. Frey, 8 Serg. & R. (Pa.) 299; ...