Nichols v. Hobbs

• Decision Date: 16 July 1917
• Docket Number: No. 18596.,18596.
• Parties: NICHOLS et al. v. HOBBS et al.
• Court: Missouri Supreme Court

197 S.W. 258

NICHOLS et al. v. HOBBS et al.

No. 18596.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Rehearing Denied July 27, 1917.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelley, Judge.

Action by Effie Nichols and others against C. H. Hobbs and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

E. R. Lentz, of Poplar Bluff, for appellants. L. M. Henson, of Poplar Bluff, and Mozley & Woody, of Bloomfield, for respondents.

WHITE, C.

The petition in this case is in two counts; the first count in the usual form to determine title under section 2535, and the second count in ejectment. The suit involves 80 acres of land situated in Stoddard county. The answer of defendants, in addition to denying the allegations of the petition, admitted they were in possession, that they claimed the land adversely, and then set up the 10-year statute of limitations and the 30-year statute of limitations.

By an agreed statement it was stipulated that the common source of title was in Martin Asher, who died in 1875, whose will was probated in Stoddard county in July of that year. At the time the will was probated, county courts had probate jurisdiction. The rights of the parties are determined by the fourth clause of that will, which, as recorded in the office of the clerk of the county court, is as follows:

"I give and devise to Elizabeth Asher, the wife of my son Arthur P. Asher, and to the heirs of her body, all of my real and personal estate after all my just debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed of and to their heirs."

This fourth clause as it appears of record in the office of the recorder of deeds is as follows:

"I give and devise to Elizabeth Asher, the wife of my son Arthur P. Asher, all of my real and personal estate after all my just debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed of and to their heirs."

It will be noticed that the only difference between these two records is the omission from the record in the recorder's office of the words "and to the heirs of her body," which appear in the record of the county court. It is said in the agreed statement of facts that the will was on file and in the custody of the court having probate jurisdiction in Stoddard county, and the fourth clause was the same as the record shows it in the record of the county court.

The plaintiffs claim title by virtue of being the grandchildren and heirs of the body of Elizabeth Asher, who died in 1912. The defendants claim through a conveyance made by Elizabeth Asher in her lifetime, whereby she and her husband conveyed "all her right, title, and interest" in the tract of land in question. The judgment of the circuit court was in accordance with the prayer of the petition.

I. The appellants base their claim of title to the property upon the face of the record of the will as it appeared in the recorder's office. They assert that the record of the will as there shown was notice to all the world of its contents; that when they purchased they purchased with constructive notice only of the will as there recorded, and by that record the plaintiffs are bound. The claim is that the statutes relating to the recording of conveyances, the effect of such records in imparting notice, and their admissibility in evidence apply to wills. In order to properly discuss the issues between the parties, it is well to remember that the statutes providing for the recording of "conveyances" are in a separate and distinct chapter from the one relating to the proof and recording of wills. These statutes are the same now as they were at the time this will was probated and filed for record.

Appellants first assert that the term "conveyances" includes wills, that they must be recorded in the recorder's office, and, with other conveyances, are governed by the requirement of section 2809, in article 1, chapter 30, R. S. 1909, which is the same as section 24, article 1, chapter 35, of Wagner's Statutes of 1870. This section reads as follows:

"Sec. 2809. Deeds, etc., to be Recorded.—Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, in law or equity, proved or acknowledged and certified in the manner hereinbefore prescribed, shall be recorded in the office of the recorder of the county in which such real estate is situated."

If this section applies to wills, it would follow, as appellants claim, that other sections of the same article would apply—those which provide that the instruments certified and recorded "in the manner hereinbefore prescribed" shall impart notice to all persons of their contents, and that certified copies of such records may be read in evidence under certain conditions. Prior sections in the same article provide for acknowledging conveyances, and give a form of certificate for the officer taking an acknowledgment, and provide also for proving by witnesses the execution of conveyances and their certification so as to admit them to record. But it is plain from the very wording of section 2809 that it cannot include wills, because it provides for the recording in the recorder's office of such instruments as are "proved or acknowledged and certified in the manner hereinbefore prescribed." Article 21, chapter 2, relating to wills, makes separate and distinct provisions for their proof.

II. In addition to the necessary negative inference that the provisions of article 1, chapter 30, R. S. 1909, cannot apply to wills, this same article contains an express statement to that effect in section 2823, which was section 34, article 1, chapter 35, Wagner's St. 1870. It reads as follows:

"Sec. 2823. This Act Not to Extend to Last Wills and Testaments.—None of the foregoing provisions in relation to the acknowledgment, proof or recording of instruments in writing, affecting real estate, shall be construed as extending to last wills and testaments."

If a will should be recorded in the recorder's office, it would not meet the requirements, mentioned as "hereinbefore prescribed," regarding acknowledgment and certification, so as to impart notice and be admissible in evidence under any provisions of this article relating to conveyances.

Appellants, however, call attention to section 566 in the article relating to wills, which is the same as section 28, chapter 145, Wagner's St. 1870, which reads as follows:

"Sec. 566. Wills of Land Shall be Recorded, Where.—In all cases where lands are devised by last will, a copy of such will shall be recorded in the recorder's office in the county where the land is situated, and if the lands are situated in different counties, then a copy of such will shall be recorded in the recorder's office in each county, within six months after probate."

And they further call attention to the fact that section 2823 was enacted in 1855 and section 566 later—enacted in 1870 (Session Acts of 1870, p. 166)—and that the act as passed contained a section repealing "all acts and parts of acts conflicting herewith." The claim is that section 566 is in direct conflict with section 2823, and therefore repeals it.

Courts will not hold that a later statute repeals an earlier one by implication, nor by an express provision to the effect that it repeals former acts inconsistent with it, unless the inconsistency clearly appears. If two statutes can be read together without repugnancy or unreasonableness, they will be read together and both given...