Peter v. Byrne

• Court: Missouri Supreme Court
• Writing for the Court: FOX, J.
• Citation: Peter v. Byrne, 75 S.W. 433, 175 Mo. 233 (Mo. 1903)
• Decision Date: 09 June 1903
• Parties: PETER et al., Appellants, v. BYRNE et al

75 S.W. 433

175 Mo. 233

PETER et al., Appellants, v. BYRNE et al

Supreme Court of Missouri, Second Division

June 9, 1903

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Vories & Vories and S. P. Reynolds for appellants.

(1) The deed was made in 1883 while Mrs. Peter was under the common-law disability of coverture. At that time the real estate of the wife could only be conveyed by the joint deed of the husband and wife, properly acknowledged and certified. R. S. 1879, sec. 669; Huff v. Price, 50 Mo. 228; City v. Anderson, 78 Mo. 87; Dameron v Jameson, 71 Mo. 99; Brown v. Dressler, 125 Mo 589. (2) "In order to convey by grant, the party possessing the right must be the grantor and use apt and proper words to convey to the grantee; merely signing sealing and acknowledging an instrument in which another person is grantor is not sufficient." Bank v. Rice, 4 How. (U.S.) 225; Harrison v. Simmons, 55 Ala. 510; Chapman v. Crooks, 41 Mich. 595; Peabody v. Hewitt, 52 Me. 33; Catlin v. Ware, 9 Mass. 218; Merrill v. Nelson, 18 Minn. 366; Stone v. Sledge, 87 Tex. 49; Laughlin v. Fream, 14 W.Va. 322; Gaston v. Weir, 84 Ala. 193; Batchellar v. Brereton, 112 U.S. 396; Adams v. Medesker, 25 W.Va. 127; Powell v. Monson, 3 Mason (U.S.) 347; Blythe v. Darrigin, 68 Ala. 370; Sheldon v. Carter, 90 Ala. 380; Davidson v. Cox, 112 Ala. 510; Lawrence v. Heister, 3 Har. & J. (Md.) 371; Jewett v. Davis, 10 Allen (Mass.) 68; Lithgow v. Cavanagh, 9 Mass. 161.

Haynes & Corby and B. R. Vineyard for respondents.

(1) The instrument should be construed to meet the intention of the parties, as gathered from the whole instrument. Hunter v. Paterson, 142 Mo. 310; Walton v. Drumtra, 152 Mo. 489. (2) To ascertain the intention of the parties, and effectuate the instrument, words may be supplied, transposed or changed in construing the deed. Briant v. Garrison, 150 Mo. 655. (3) It is evident that Sarah M. Peter and her husband, Armenius Peter, who signed and acknowledged the deed with his wife, intended to convey the premises therein described to Annie Oatman, the grantee therein, and that the husband gave his assent to the transaction, and that he was present to protect her from imposition, and that he joined in the deed that his assent might appear. Is this a sufficient joinder? 10 Heisk. 226; 2 N.H. 525; 38 N.H. 29; 86 Ky. 653; 102 Ala. 468; 26 Miss. 275; 35 Miss. 107; 2 Gill & J. 1. (4) The most that can be said is that the omission of the husband's name in this introductory recital, as to who are parties to the deed, is a mere clerical mistake of the scrivener, which the court will correct by construction. Miller v. Shaw, 103 Ill. 292; Huyler v. Atwood, 26 N.J.Eq. 507. (5) The identity of the grantor may be ascertained from the execution alone, and the absence of the name of the grantor from the granting clause will in no way impair the force and validity of the deed. Elliott v. Sleeper, 2 N.H. 525; Woodward v. Seaver, 38 N.H. 29; Hrouska v. Janke, 66 Wis. 254; 3 Wash. on Real Prop., ch. 4, sec. 1, sub. 31; Kelton v. Brown (Tenn.), 39 S.W. 541; Pease v. Bridge, 49 Conn. 58; Schley v. Car Co., 25 F. 890; Bray v. Clapp, 80 Me. 277; Roberts v. McIntyre, 84 Me. 362; Hargis v. Ditmore, 86 Ky. 653; Hills v. Bearse, 9 Allen (Mass.) 403; Evans v. Summerlin, 19 Fla. 858; Vasquez v. Texas L. Ag'c'y, 45 S.W. 942; Stone v. Montgomery, 35 Miss. 107; Armstrong v. Stovall, 26 Miss. 275; Ingoldsby v. Juan, 12 Cal. 564; Dentzell v. Waldie, 30 Cal. 138; Dean v. Shreve, 155 Ill. 650; Miller v. Shaw, 103 Ill. 292; Mills v. Catlin, 22 Vt. 98; Bierer v. Fretz, 32 Kan. 336; Mardes v. Meyers (Tex.), 28 S.W. 693. (6) It appears affirmatively on the face of the deed, that the husband and wife united in conveying the land in controversy in this suit. They both appear as joint grantors in the granting clause of the deed, as parties of the first part, as they describe themselves, in conveying the property. The court will uphold the deed, if it can see from the whole instrument that those signing and acknowledging it intended that it should operate as their conveyance. The mistake in describing the party of the first part will be ignored. Miller v. Shaw, 103 Ill. 292; Huyler v. Atwood, 26 N.J.Eq. 507; s. c., 28 N.J.Eq. 275; Kelton v. Brown (Tenn.), 39 S.W. 541; Houx v. Batteen, 68 Mo. 84; Mardes v. Meyers (Tex.), 28 S.W. 693.

OPINION

FOX, J.

STATEMENT.

On the 31st day of August, 1900, plaintiffs filed their petition in the Buchanan County Circuit Court, which is as follows:

"Plaintiffs state that on the first day of August, 1899, they were and still are the owners in fee and entitled to the possession of the north fifty-six feet of lots six and seven, in block thirty, in St. Joseph Improvement addition, an addition to the city of St. Joseph, in Buchanan county, Missouri. That being so entitled to the possession of said real estate, defendants on the 2d day of August, 1899, entered into possession of the premises and unlawfully withhold from plaintiff the possession thereof to their damage in the sum of one hundred dollars. That the monthly rents and profits of said real estate are five dollars. Plaintiffs further state that defendants George A. Byrne and Mark L. Byrne are minors and that defendant Cecelia C. Byrne is their guardian and curator duly appointed by the probate court of Buchanan county. Plaintiffs therefore pray that judgment be rendered for one hundred dollars damages and for monthly rents and profits in the sum of five dollars, and for all other proper relief."

On September 18, 1900, and during the regular September term, 1900, of said circuit court, defendants and each of them filed their answer, which is a general denial.

It is admitted that Sarah M. Peter is the common source of title; also that Sarah M. Peter, the mother of plaintiffs, was married to Armenius Peter at the time she acquired this property by a general warranty deed, and continued to be his wife until her death. It was shown by the testimony that appellants were the only children and heirs at law of Sarah M. Peter, the common source of title.

Defendants introduced in evidence the following deed to Annie Oatman:

"This deed, made and entered into this fifteenth day of October, in the year of our Lord, eighteen hundred and eighty-three, by and between Sarah M. Peter, wife of Armenius Peter, of the county of Buchanan and State of Missouri, of the first part, and Annie Oatman, wife of John A. Oatman, of the county of Buchanan and State of Missouri, of the second part. Witnesseth: That the said parties of the first part for and in consideration of the sum of five hundred dollars to them in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, have given, granted, bargained and sold, and by these presents do give, grant, bargain, sell and convey and confirm unto the said parties of the second part, and to their heirs and assigns forever, the certain tracts, pieces or parcels of land lying and being in the county of Buchanan and State of Missouri, to-wit: fifty-six feet of the north end of lots six and seven in block thirty, in the St. Joseph Improvement Company's addition to the city of St. Joseph. To have and to hold the said tract, piece or parcel of land, with all the privileges and appurtenances thereunto belonging or in anywise appertaining unto them, the said parties of the second part, and to their heirs and assigns forever, and the said parties of the first part for them, their heirs, executors and administrators do covenant and agree that they will warrant and forever defend the title to the said tract, piece or parcel of land and every part thereof unto them, and the said parties of the second part, their heirs and assigns against the lawful claim or claims of all persons whomsoever.

"In testimony whereof the said parties of the first part have hereunto set their hand and seals the day and year first herein written.

"Sarah M. Peter. (Seal)

"Armenius Peter. (Seal)

"State of Missouri, county of Buchanan -- ss.

"On this sixteenth day of October, 1883, before me, a notary public within and for said county, personally appeared Sarah M. Peter and Armenius Peter, her husband, to me known to be the persons described in and who executed the within and foregoing instrument or deed, and acknowledged that they executed the same as their free act and deed.

"In witness whereof I have hereunto signed my name and affixed my official seal at my office in said county the day and year last aforesaid.

"My term of office expires January 24, A. D., 1887.

(Seal) "John F. Tyler.

"Notary Public of Buchanan county, in the State of Missouri."

To the introduction of this deed in evidence plaintiffs objected because it is the deed of a married woman, and her husband is not joined with her as grantor, and the same is void because at that time a married woman could not convey her legal estate without her husband joining her as such in the deed. The court overruled plaintiffs' objection and admitted said deed in evidence, to which action and ruling of the court in admitting said deed in evidence and overruling plaintiffs' objections thereto, plaintiffs then and there excepted.

Defendants offered in evidence a general warranty deed duly executed by Annie Oatman and John A. Oatman, her husband, dated the 10th day of September, 1884, conveying the property herein sued for to all of the defendants herein which said deed was in due form and properly acknowledged, on said 10th day of September, 1884, filed for record October 15, 1884, at 3 o'clock and minutes p. m., and recorded in book 130, page 231. To the introduction of which the plaintiffs objected. The court overruled plaintiffs' objections and admitted it in...