Mcalister v. Pritchard

• Decision Date: 09 April 1921
• Docket Number: No. 21500.,21500.
• Citation: 287 Mo. 494,230 S.W. 66
• Parties: McALISTER v. PRITCHARD.
• Court: Missouri Supreme Court

230 S.W. 66

287 Mo. 494

McALISTER v. PRITCHARD.

No. 21500.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Pearl McAlister against T. E. Pritchard. Judgment for plaintiff, and defendant appeals. Affirmed.

Ely, Pankey & Ely and Orville Zimmerman, all of Kennett, for appellant.

McKay & Jones, of Kennett, for respondent.

RAGLAND, C.

This is an action to determine the title to the northeast fourth of the southeast quarter of section 25, in township 20 north, of range 9 east, in Dunklin county, and to recover the possession.

The pleadings are conventional. Whether plaintiff has the legal title to the land just described is the main issue; questions relating to the value of the rents and profits are incidental, and not the subject of controversy on this appeal.

C. M. Pritchard is the common source of title. On November 16, 1911, he and his wife, for the expressed consideration of love and affection, executed and delivered a deed to Frances Bullock, a daughter of Pritchard by a former marriage, purporting to convey to her the land in controversy. The deed contained this language immediately following the description of the land:

"The above to remain the property of C. M. Pritchard during the term of his natural life."

In all other respects it followed exactly the form of general warranty deed in general use in this state. Frances Bullock promptly recorded her deed. She died July 2, 1916, leaving plaintiff as her sole heir.

C. M. Pritchard had three other children by the former marriage and the defendant was one of them. At the time he gave the deed to his daughter, Frances, he made and delivered a deed to each of the three others, conveying land to them severally. Each of the deeds was precisely like the one he gave Frances, except as to the name of the grantee and the description of the land. Two years later his wife brought suit for divorce, and pending the suit, May 1, 1913, he executed and delivered to the defendant a general warranty deed, purporting to convey to him the land in question and other land. The deed recited a consideration of $6,000. Pritchard died January 16, 1918, and this suit was commenced August 22d next following.

The cause was tried without a jury. The trial court held that by his deed of November 16, 1911, Pritchard conveyed to Frances Bullock the land in fee, subject to an estate for his own life, which he therein reserved; and that by his deed of May 1, 1916, he conveyed that life estate to defendant. It accordingly gave judgment for plaintiff. Defendant appeals.

1. The sole contention of appellant is that the deed from Pritchard to his daughter, Frances Bullock, was testamentary in character and therefore revocable at pleasure during his lifetime; and that it was revoked by the subsequent deed to appellant. There is nothing in the form of the instrument, or in its verbiage, that remotely indicates that Pritchard thought he was making a will; nor was there evidence of any extrinsic fact showing that it was his purpose to execute such an instrument. But it is insisted that it is immaterial that he called the instrument a deed, and in fact thought it was such. This, because, as it is claimed, the language of the instrument shows that the grantor did not intend to pass to the grantee any present interest in the land; that it was his purpose to retain for the period of his life, not only the use and enjoyment, but the entire title—in other words, that it was his intention that the deed should not become operative until his death.

As showing that it was the grantor's intention that the deed should not take effect until after his death, appellant points to the clause, "The...