McAnaw v. Tiffin

• Decision Date: 23 November 1897
• Parties: McANAW v. TIFFIN et al.
• Court: Missouri Supreme Court

45 S.W. 656

143 Mo. 667

McANAW v. TIFFIN et al.

Supreme Court of Missouri, Division No. 2.

November 23, 1897.

DEEDS — VALIDITY — OPERATIVE WORDS — CONDITIONS — INSANE GRANTOR — DISAFFIRMANCE.

1. "Remise, release, and forever quitclaim" are not words of release, only, and are sufficient operative words of conveyance, though the grantee had no prior estate.

2. A quitclaim deed conveys an indefeasible estate, though containing a recital that it is made with the understanding that the grantee "will take care of and see that he [the grantor] is properly treated during his lifetime."

3. A deed of an insane person, made before inquest, is voidable, but not void, though the grantee paid no consideration, and knew of the grantor's condition.

4. An insane person's guardian inventoried land, that his ward had conveyed before inquest, as his ward's property, collected the rents, and brought suit to disaffirm the deed. Pending such suit, his ward died, and thereafter nothing was done by him, or his ward's heirs or administrator, to disaffirm the deed. Held, that the guardian had not disaffirmed the deed.

Appeal from circuit court, Clinton county; W. T. Herndon, Judge.

Ejectment by John J. McAnaw against Clayton Tiffin and others. A motion to set aside a nonsuit was overruled, and plaintiff appeals. Affirmed.

Carlton Henry, H. T. Herndon, and J. J. McAnaw, for appellant. Turney & Goodrich, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of lots 10 and 12, block 57, in the city of Cameron, Clinton county. The action was begun on the 25th day of September, 1895, against E. E. Dickover and Clayton Tiffin; the petition being in the ordinary form. The defendant Clayton Tiffin filed his separate answer, alleging that on the 28th day of January, 1892, he contracted in writing with Peter F. Clark, now deceased, for the sale of said lots to him, and, in pursuance to such contract, put said Clark in possession of said lots on said date; that on the 25th day of September, 1895, he and his wife conveyed all their interest in the lots to Margaret Clark. He disclaims any interest in the lots. The defendant Dickover, by his separate answer, admits that he was in possession on and before April 21, 1895, but alleges that his possession was lawful, as tenant of Peter F. Clark, now deceased; admits that he occupied said lots as such tenant from the date aforesaid to the 1st day of January, 1896, and that since said date he has occupied the lots as tenant of Margaret Clark, who, he alleges, is the owner. Margaret Clark, on her motion, in which she alleges, among other things, that she is executrix of the estate of Peter F. Clark, deceased, was made a party defendant. Margaret Clark, by her separate answer, denies that on the 21st day of September, 1895, or at any other time, the defendants, or either of them, unlawfully entered said premises, or any part thereof, and unlawfully withhold possession thereof from plaintiff. But she admits that the defendant Dickover at said date was, and before and since has been, in possession of said lots and premises as tenant of Peter F. Clark, now deceased, and of this defendant; and she alleges that his possession was and is lawful. She then sets up an equitable defense to the suit. The trial was before the court and a jury. Samuel Matthis, Sr., is the common source of title. On the trial, plaintiff showed that by sheriff's deed of date September 17, 1895, he had acquired whatever title or interest Samuel Matthis, Jr,, had in the lots, proved the value of the rents and profits, and rested. Defendants then read in evidence the following deeds to wit: (1) "This indenture, made on the 10th day of June, A. D. 1891, by and between Samuel Matthis, Sr., of the county of Clinton and state of Missouri, party of the first part, and Ada L. Matthis, of the county of Clinton and state of Missouri, party of the second part, witnesseth, that the said party of the first part, in consideration of the sum of love, affection, and care of myself, and one hundred dollars to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents remise, release, and forever quitclaim unto the said party of the second part the following described lots, tracts, or parcels of land, lying, being, and situate in the county of Clinton and state of Missouri, to wit: All of lots No. ten (10) and twelve (12) in block No. fifty-seven (57) in the town (now city) of Cameron, in the county and state aforesaid. This deed of quitclaim is made with the understanding the party of the second part will take care of and see that he is properly treated during his lifetime. To have and to hold the same, with all the rights, immunities, privileges, and appurtenances thereto belonging, unto the said party of the second part, and her heirs and assigns forever, so that neither the said party of the first part, nor his heirs, nor any other person or persons for him, or in his name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they, and every one of them, shall by these presents be excluded and forever barred. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. [Seal.] Samuel Matthis, Sr." Said deed was acknowledged in due form on the 10th day of June, 1891, and was on the 10th day of September, 1891, filed for record in the recorder's office. (2) Deed of general warranty, dated January 6, 1892, executed by Samuel Matthis, Jr., and Ada L. Matthis, as husband and wife, conveying the lots in question to Clayton Tiffin in consideration of $5,000. Duly acknowledged and recorded January 9, 1892. (3) Deed of general warranty, dated January 22, 1892, from Clayton Tiffin, conveying to Julia A. Tiffin, his wife (consideration, $1, and love and affection), the property in controversy. Duly acknowledged and recorded January 23, 1892. Defendants offered in evidence a deed from Clayton Tiffin and Julia A. Tiffin, his wife, conveying to Margaret Clark the property in controversy, and lots 2, 4, and 6, and N. ½ of 8, and other property. The operative words are, "Bargain, sell, and convey all the right, title, and interest owned by grantors, or either of them, January 28th, 1892, and at this date." Duly acknowledged and recorded September 28, 1896. Plaintiff objected to the introduction of the above deed for the reason that it was neither made nor recorded until after the institution of this suit, which objection the court overruled; to which ruling the plaintiff then and there excepted. Thomas E. Turney, on behalf of defendants, testified: "I know that the deed of Samuel Matthis to Ada L. was delivered before the death of Samuel Matthis. Mrs. Matthis had it in her possession, and showed it to me, and I read it." Defendants then rested. The plaintiff, in rebuttal, proved that at the time of the execution of the deed from Samuel Matthis, Sr., to Ada L. Matthis, she was the wife of Samuel Matthis, Jr., and that at that time, and for at least two years next preceding, Samuel Matthis, Sr., was demented, and incapable of attending to any kind of business, of which said Ada was fully advised; that on the 23d day of July, 1891, Samuel Matthis, Sr., was adjudged to be of unsound mind by the probate court of Clinton county, and on the following day Virgil R. Porter was duly appointed guardian and curator of his personal estate, who thereafter filed his inventory of the property of his ward, which embraced the lots in question, and the furniture and fixtures in the hotel building situated on said lots; that said Porter instituted suit, as curator of said Matthis, Sr., to set aside the deed to Ada Matthis, but that his ward died before the termination thereof; that Porter, as such curator, collected the rents of the real estate monthly from Cable, the tenant in possession; after Porter was appointed curator of Matthis, Sr., he caused him to be taken to the house of one Mrs. Adams, where he remained until his death, which occurred on the 3d day of September, 1891. All evidence introduced by plaintiff in rebuttal tending to show that Samuel Matthis, Sr., was insane at the time of the execution of the deed by him to Ada L. Matthis, and the appointment of a guardian for him thereafter, and the disaffirmance of said deed by his guardian, was stricken out on motion of defendants; to which ruling of the court plaintiff objected, and saved his exceptions. Plaintiff next offered in evidence, but which was excluded by the court, the deposition of one J. A. Cable, taken in an action in said circuit court wherein Henry C. Coit et al. were plaintiffs, and Clayton Tiffin et al. were defendants, for the purpose of setting aside the deed from Samuel Matthis, Sr., to Ada Mathhis, upon the ground that...