Owen v. Trail

• Decision Date: 11 February 1924
• Docket Number: 22789
• Citation: 258 S.W. 699,302 Mo. 292
• Parties: WILLIAM H. OWEN et al. v. MARTHA E. TRAIL et al., Appellants
• Court: Missouri Supreme Court

258 S.W. 699

302 Mo. 292

WILLIAM H. OWEN et al. v. MARTHA E. TRAIL et al., Appellants

No. 22789

Supreme Court of Missouri

February 11, 1924

Motion for Rehearing Denied February 11, 1924.

Appeal from Lincoln Circuit Court; Hon. Edgar B. Woolfolk Judge.

Affirmed.

Creech & Penn and Howell & Jackson for appellants.

(1) The court erred in rejecting evidence to the effect that William Trail had made disposition of all of his property to his other children, except the lands and personal property described in the purported deed. Speed v. Terminal Ry Co., 163 Mo. 113; Long v. Timms, 107 Mo. 512; Aldridge v. Aldridge, 202 Mo. 556; Cross v Hoch, 149 Mo. 325. (2) In construing an instrument of writing, the intent of the grantor must govern, and such intent must be gathered from the four corners of the instrument. See authorities cited under Point 4. (a) The instrument under which plaintiffs claim title is a grant in futuro and not in praesenti; it is to take effect only on the death of William Trail; it is not executed as prescribed by law for the execution of wills, and is void. Murphy v. Gabbert, 166 Mo. 596; Griffin v. McIntosh, 176 Mo. 392; Givens v. Ott, 222 Mo. 395; Aldridge v. Aldridge, 202 Mo. 572; Goodale v. Evans, 263 Mo. 219; Hohenstreet v. Segelhorst, 285 Mo. 507. (b) Disposition of both real and personal property is made in the instrument under review, and the whole instrument reveals the idea that the disposition was testamentary. Aldridge v. Aldridge, 202 Mo. 572. (3) The instrument although testamentary in character and void for that reason, was color of title, and Sarah Trail, the daughter, having gone into possession of the lands, became the owner thereof by the running of the Statutes of Limitation. Mansfield v. Pollock, 74 Mo. 185; Fugate v. Pierce, 49 Mo. 441; Smith v. Johnson, 107 Mo. 494; Hickman v. Link, 97 Mo. 488; Hamilton v. Boggess, 63 Mo. 233; Pharis v. Bayless, 122 Mo. 116; Shumate v. Snyder, 140 Mo. 77; Perkins v. Irvin, 200 Mo. 490; Dunnington v. Hudson, 217 Mo. 100. (4) This instrument, as a form of conveyance, operates as: (a) A covenant on the part of the grantor to stand seized of the estate to the use of himself and wife for life, and at their death to his daughter, and the operation of the Statute of Uses on the covenant forced the fee in said daughter eo instante; or (b) a conveyance of the whole of the title held by the grantor the daughter, by virtue of the very terms of the written instrument. Intention (the soul of the instrument, expressed anywhere, in any words -- the simpler and plainer the better -- in the deed) of the grantor, gathered from the four corners of the instrument in the light of the circumstances surrounding him at the time of its execution, is now the pole star of all construction -- mere words are not the principal thing. Eckle v. Ryland, 256 Mo. 441; Garrett v. Wiltse, 252 Mo. 707; Utter v. Sidman, 170 Mo. 294; Aldridge v. Aldridge, 202 Mo. 572; Walton v. Drumtra, 152 Mo. 497; Cross v. Hoch, 149 Mo. 338; Jamison v. Fopiano, 48 Mo. 195; Gibson v. Bogy, 28 Mo. 479. Under Missouri decisions, the instrument in the case at bar raises a presumption of lack of technical knowledge on the part of all persons connected with its drafting and execution, necessitating an interpretation in keeping with the intelligence of the parties to effect their intent. (b) This, in particular, is presumed from their signing by mark. Nations v. Spence, 235 S.W. 1065; Cross v. Hoch, 149 Mo. 338. (c) Technical words must be construed in the sense in which such grantor used them, and carping and captious criticisms of such words must be disregarded. Cross v. Hoch, 149 Mo. 338; Tygard v. Hartwell, 204 Mo. 205; Tennison v. Walker, 190 S.W. 12; Aldridge v. Aldridge, 202 Mo. 572; Chow v. Kellar, 171 Mo. 221; Shepherd v. Anderson, 192 S.W. 952; Willis v. Robinson, 237 S.W. 1032. (d) And non-technical words must be taken in their usual acceptation. Bradshaw v. Bradbury, 64 Mo. 334. (e) Any doubt existing from the terms of the instrument is to be resolved in favor of the grantee. Bray v. Conrad, 101 Mo. 337; Bradshaw v. Bradbury, 64 Mo. 336; Linville v. Greer, 165 Mo. 380. (b) Every conveyance of real estate conveys all the title of the grantor therein, unless a less estate is conveyed unequivocally. R. S. 1919, sec. 2265; R. S. 1855, ch. 32, sec. 2, p. 355; McMahill v. Schowengerdt, 183 S.W. 606; Bray v. Conrad, 101 Mo. 337; Osborn v. Weldon, 146 Mo. 193. (g) In order to convey a fee-tail estate, no doubt must be left from the terms of the instrument. Gannon v. Pauk, 200 Mo. 94; Sec. 2267, R. S. 1919; Laws 1825, sec. 4, p. 216. (5) Therefore, this instrument is either: (a) A covenant on the part of William Trail to stand seized of the estate to the use of himself and wife for life, and at their death to Sarah A., his daughter; and the operation of the Statute of Uses on the covenant forced the fee in said daughter eo instante. 1 Devlin, on Deeds (3 Ed.) sec. 22, p. 33; Tiedeman on Real property (3 Ed.) secs. 332, 339; 1 Washburn on Real Property (3 Ed.) secs. 180, 179; Sec. 2262, R. S. 1919; Sec. 1, ch. 32, p. 354, R. S. 1855; Sec. 2267, R. S. 1919; Sec. 5, ch. 32, p. 355, R. S. 1855; Aubuchon v. Bender, 44 Mo. 561; Guest v. Farley, 19 Mo. 151; Chancellor v. Windham, 1 Rich Law (S. C.) 161; Rembert v. Vetoe, 89 S.C. 216; Racker v. Brown, 183 Mass. 427; Merrill v. Publishers Paper Co., 77 N.H. 286; Jackson v. Swart, 20 Johns. (N. Y.) 85; Barrett v. French, 1 Conn. 354, 6 Am. Dec. 24; Barry v. Shelby, 5 Tenn. (4 Hamm) 229; or (b) A conveyance of the whole of the title held by the grantor to the daughter, by virtue of the very terms of the written instrument. Adams v. Cary, 226 S.W. 834; Tennison v. Walker, 190 S.W. 12; Garrett v. Wiltse, 252 Mo. 708; McDowell v. Brown, 21 Mo. 57; English v. Beehle, 32 Mo. 186. "And no person claiming ownership under us shall ever have any right to any of the real estate conveyed by us mentioned in this deed of gift made by us, as witness our hands and seals." Ewing v. Shannahan, 113 Mo. 195.

Robert L. Sutton, Grover C. Huston and Derwood E. Williams for respondents.

(1) The deed created a fee-tail estate, which under the statute became an estate for life in Sarah A. Trail, with the remainder in fee to the heirs of her body. Hunter v. Patterson, 142 Mo. 310; McCullock v. Holmes, 111 Mo. 445; Wood v. Taice, 103 Mo. 329; Reed v. Lane, 122 Mo. 311; Philips v. Laforge, 89 Mo. 72; Chas. v. Patch, 87 Mo. 463; Farrar v. Christey, 24 Mo. 453; Bone v. Tyrell, 113 Mo. 175; Elsea v. Smith, 273 Mo. 396; Case v. Sipes, 280 Mo. 110; Femmson v. Walker, 190 S.W. 9; Burris v. Page, 12 Mo. 358; Charles v. Neill, 214 Mo. 187; Chiles v. Bertleson, 21 Mo. 316; Donnan v. Intelligencer, etc. Co., 70 Mo. 174. (2) The instrument is a good and valid deed, and is not testamentary in character. It immediately created an interest in the land in the grantees, but the enjoyment of that interest was not to take effect until after the death of the grantors. Sec. 2271, R. S. 1919; Christ v. Kuehne, 172 Mo. 118; O'Day v. Meadows, 194 Mo. 586; Wimpey v. Ledford, 177 S.W. 302; Hohenstreet v. Segelhorst, 285 Mo. 507; Priest v. McFarland, 262 Mo. 229; Dawson v. Taylor, 214 S.W. 852; Sims v. Brown, 252 Mo. 58; Dozier v. Toalson, 180 Mo. 546.

White, J. All concur, except woodson, C. J., who dissents.

OPINION

WHITE

Action in ejectment for tract of land in Lincoln County. The petition, in the usual form, was filed February 19, 1919. The answer pleads the ten-year, the twenty-four-year, and the thirty-year Statute of Limitations, and alleges further that Martha E. Trail is the owner of the land in fee simple.

Plaintiffs claim as the heirs and descendants of William Trail, deceased, who is the common source of title. The defendants claim as grantees of Sarah A. Trail, daughter of William Trail. The controversy turns upon the construction of the following conveyance, executed by William Trail and Sarah Trail, his wife, conveying the property to their daughter, Sarah Trail, sometimes named in the record Sarah A. Trail, as follows:

"This Indenture entered into this 20th day of August in the year of our Lord one thousand eight hundred and Sixty four between William Trail and Sarah Trail, his wife, of the first part and Sarah Trail of the second part, boath parties of the County of Lincoln State of Missouri Witnesseth that for and in consideration for the grate love and regard we have for the said Sarah Trail being our beloved daughter and for the father consideration for the tender regard She has Shown us in our declining years have this day by this deed of Gift Granted deeded and convaied into her the said Sarah Trail the partie of the Second part and the heires of her body for ever -- but it is distinctly understood by the parties that the Said Sarah Trail the partie of the Second part is not to come in possession of the real estate described nor to exersize aney controle over the Same until after the death of William Trail & Sarah Trail the parties of the first part and being the Father and Mother of the Second partie. Said Tract of land described as follows (Towit) Seventy Six acres being the North half of the South East quarter of Section Thirty one in Township Fifty of Range one west of the fifth principal Meridian to have and to hold the Said Granted premicies with all the priviligs and appertainances thereto belonging to the aforesaid Sarah Trail and the heirs of heir body for ever and we Father deed Give and coney unto the partie of the Second part two beadstides one of them made by Thompson and the other bought from John Hall Two fether beds two underbeads and four pillows two bolsters and all the quilts coverleds blancurts and Sheet that She clames as belonging to Said beads -- one pres one falling leaf...