Miller v. McCaleb
| Decision Date | 24 December 1907 |
| Citation | 106 S.W. 655,208 Mo. 562 |
| Parties | KATE MILLER et al., Appellants, v. ARA E. McCALEB et al |
| Court | Missouri Supreme Court |
Appeal from Dade Circuit Court. -- Hon. L. W. Shafer, Judge.
Affirmed.
Edwin Frieze for appellants; Sherwood & Young of counsel.
(1) Upon request made by plaintiffs that the lower court should state in writing the conclusions of fact found separately from the conclusions of law, such request should have been granted. On this subject the statute is entirely plain and it is mandatory; it applies by its express terms to cases in equity as well as to cases at law. Cochran v Thomas, 131 Mo. 268; Lawyers' Co-op. Pub. Co. v Gordon, 173 Mo. 152; Blount v. Spratt, 113 Mo 53. The lower court therefore erred in denying plaintiffs' request. (2) Under the deed the words "and the lawful heirs of the said Ethelbert A. McCaleb," therein contained, conveyed an equity at least, to the then four living children of said Ethelbert A. McCaleb; and they took as tenants in common with their step-mother, Ara E. McCaleb, and she took the legal title to the land for her own benefit, and as trustee for the then living children of Ethelbert A. McCaleb. Bailey v. Willis, 56 Tex. 212; Jackson v. Sisson, 2 Johns. 321; Arthur v. Weston, 22 Mo. 382; Beoman v. Whitney, 20 Me. 420; Reinhard v. Va. Lead Min. Co., 107 Mo. 624; Benev. Soc. v. Murray, 145 Mo. 628; Huss v. Stephens, 51 Pa. St. 282; Tharp v. Yarbrough, 79 Mo. 382; Ennis v. Brown, 1 A.D. 22; Pfeiffer v. Rheinfrank, 2 A.D. 574; Waddell v. Waddell, 99 Mo. 338; Hamilton v. Pitcher, 53 Mo. 334. "Heirs" is used in the sense of "children" when the deed is to one and her minor heirs. Seymour v. Bowles, 172 Ill. 521; Heath v. Hewitt, 27 N.E. 961. (3) At the time the deed was executed, to-wit, in 1872, all of the personal property, etc., of a married woman at and during marriage became the property of her husband. Leete v. Bank, 115 Mo. 184. Aside from statutory provisions, presumptively the personal property of the wife is that of the husband. And upon marriage, prior to the Married Woman's Act of 1889 the husband became possessed of the wife's realty and entitled to its usufruct. (4) During the life of the husband the statute would not run against plaintiffs. Dyer v. Witler, 89 Mo. 81. (5) Under the law as it existed when the deed was executed, the exclusive possession of the farm was in the husband, and consequently his declarations about the title were evidence as part of the res gestae. 1 Glf. Evid. (14 Ed.), sec. 109. No other person being in possession, the declarations of such persons were without probative force. Meegan v. Gunsollis, 19 Mo. 417; Hunt v. Thompson, 61 Mo. 154; Meier v. Meier, 105 Mo. 431.
C. F. Newman, Mason Talbutt and Edgar P. Mann for respondents.
(1) No one can be an heir of the living, and the grant in this case to "the lawful heirs of Ethelbert A. McCaleb," he being living, is void for uncertainty as to them, and respondent Ara E. McCaleb, specifically named in the deed as grantee, took the title. Hall v. Leonard, 1 Pick. 27; Winslow v. Winslow, 2 Ind. 8; Outland v. Bowen, 115 Ind. 150; Fountain v. Beckelheimer, 102 Ind. 76; Boone v. Moore, 14 Mo. 420; Brewster on Conveyances, art. 40, p. 50; Heath v. Hewitt (N. Y.), 13 L. R. A. 46. (2) The word "children" in its primary and natural sense is a word of purchase, but the word "heirs" is in its primary and natural sense a word of limitation and not of purchase. Schoolmaker v. Sheely, 3 Denio 490; 4 Kent Com., 222; Broom's Legal Maxims, 521. (3) The evidence shows that there was never a delivery of the recorded deed, purporting to convey this property to Ara E. McCaleb, wife of Ethelbert A. McCaleb, and the lawful heirs of Ethelbert A. McCaleb. Neither of the grantees knew of its existence, or assented to its terms or execution, or to its registry. All were ignorant of its very existence in the shape in which it was recorded. If it be contended that since it was beneficial to the minor heirs of Ethelbert A. McCaleb, they are presumed to have assented to the delivery, the fact still remains that knowledge of its existence and assent to its terms and delivery on the part of Ara E. McCaleb, was necessary to make the delivery valid and the deed operate as a conveyance of the property. And that she had no such knowledge and gave no such assent. Appleman v. Appleman, 140 Mo. 309; Powell v. Banks, 146 Mo. 620; Hall v. Hall, 107 Mo. 101; 3 Wash. Real Prop. (4 Ed.), 292.
Action in partition, by petition in the usual form, with prayer for the partition of sixty acres of land in Dade county, and for account of rents and profits alleged to have been had and received by one of the defendants. The plaintiffs, Kate Miller and Lidia A. Forrest, and the defendants S. A. McCaleb and C. A. McCaleb, are children of Ethelbert A. McCaleb, who died in the year 1901, and the only answering defendant is Ara E. McCaleb, the second wife and widow of the said Ethelbert A. McCaleb. The four children of the said Ethelbert, made parties to this action, are children by his first wife. The deceased, Ethelbert A. McCaleb, and the defendant Ara E. McCaleb were married in 1871. At the institution and trial of this suit there were two children of the second marriage alive, but they were not made parties. They testify as witnesses, however. The answer of Ara E. McCaleb, the only answering defendant, was a general denial.
Plaintiffs base their claim on the following deed:
This deed was acknowledged before Wm. Van Horn, justice of the peace, on the date thereof. It was filed for record April 24, 1872, and duly recorded in book 16 at page 519 thereof of the deed records of said county. On the back of the original of this deed appears this endorsement:
The plaintiffs introduced the record of this deed and the answering defendant produced the original. There is no difference between the record of the deed and the original, nor of the certificates of acknowledgment and other endorsements thereon, except on the original appears a cancelled United States revenue stamp.
Defendant placed in evidence another deed identical in form except as hereinafter noted, of the same date, acknowledged on the same date by the same justice of the peace, having the same grantors and conveying the same land. The only difference is in the names of the grantees. In this last-mentioned deed the grantees are "Are E. McCaleb and Ethelbert A. McCaleb, her husband," instead of "Ara E. McCaleb and the lawful heirs of the said Ethelbert A. McCaleb," as in the deed first fully set out hereinabove. This deed has endorsed on the back thereof, the following:
"Warranty Deed from William F. Dry and Emily J. Dry to Ara E. McCaleb and Ethelbert A. McCaleb."
This deed has no revenue stamp and had not been recorded.
Defendant also offered in evidence a mortgage dated April 22, 1872, to secure two notes of $ 215 each; in this mortgage the grantee is William F. Dry, and he is also the payee in the two notes described therein, and the land conveyed is the same involved in this suit. The notes are signed by Ethelbert A. McCaleb, and he signs the mortgage with his wife, but the first part of the mortgage reads: "This indenture, made and entered into this twenty-second day of April, A. D. 1872, by and between Are E. McCaleb, wife of Ethelbert A. McCaleb, in the county of Lawrence and State of Missouri of the first part, and William F. Dry of the county of Dade, State of Missouri, of the second part, witnesseth:" This mortgage was likewise acknowledged before Van Horn, justice of the peace.
Such is the documentary evidence in the case.
By oral...
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