Pike v. Menz
| Decision Date | 14 March 1949 |
| Docket Number | 40932 |
| Citation | 218 S.W.2d 575,358 Mo. 1035 |
| Parties | William Pike, Appellant v. Sarah Menz, Joe Menz, Thomas Dunning, Herman Hutson, Melba Hutson, Louis Hutson, Betty Hutson, Levi K. Hutson. Beatrice Walker, Boyd Hutson, Della May Hutson, Margaret Hutson, Gladys Hutson, Jane Hutson, Frank Hutson (known also as Frank Miller, Allen Hutson, and Anna Ruth Hutson, Defendants, Sarah Menz, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court; Hon. J.C McDowell, Judge.
Reversed and remanded (with directions).
J Grant Frye and Gerald B. Rowan for appellant William Pike.
(1) The deed here involved will be construed upon its face, or from its four corners; and the whole deed looked to for the purpose of ascertaining the parties intent, and the whole deed given effect if agreeable to the applicable rules of law. Mott v. Morris, 155 S.W. 434, 249 Mo. 137; Sims v. Brown, 158 S.W. 624, 252 Mo. 58; Garrett v. Wiltse, 161 S.W. 624, 252 Mo. 699; Heady v Hollman, 158 S.W. 19, 251 Mo. 632; Warne v. Sorge, 167 S.W. 967, 258 Mo. 162. (2) The intention of the grantor in this deed is expressed in the typewritten words immediately following the description and these words serve to create a fee simple in William Pike which is conditional upon his surviving Maggie Elizabeth Dunning. Upon the happening of the condition (that is, the death of William Pike prior to Maggie Elizabeth Dunning) the words provide that the defeased title shall go to Maggie Elizabeth Dunning for life, with remainder to Essie Hutson. Since William Pike (the plaintiff) is living and both Maggie Elizabeth Dunning and Essie Hutson have since died, the happening of the condition which would defeat the fee simple conditional of William Pike is impossible and he now possesses the whole title, or a fee simple absolute. White v. Kentling, 134 S.W.2d 39, 345 Mo. 526. (3) The intention of the grantor may be expressed anywhere in the deed, and in any words that will impart it, and the court will enforce it, no matter in what part of the instrument it is found. The only construction of this deed which will give effect to the intention of the grantor as garnered from the instrument itself is that a fee simple conditional was created in William Pike by the words immediately following the description. Any other construction must necessarily completely ignore these words, and nothing in the case indicates that these words got into the deed by accident or mistake or that they should be given other than their plain meaning. Utter v. Sidman, 70 S.W. 702, 170 Mo. 284; Hunter v. Patterson, 44 S.W. 250, 142 Mo. 310; Perry v. Griffith, 165 S.W.2d 412. (4) The words of specific limitation in this deed (those after the description) will prevail over words of general limitation (those in the fore part of the granting clause). Hunter v. Patterson, 44 S.W. 250, 142 Mo. 310. (5) The typewritten provisions of this deed (the words after the description) will control over the printed provisions (the fore part of the granting clause) if they are inconsistent. Davidson v. Manson, 48 S.W. 635, 146 Mo. 608; DePaige v. Douglas, 136 S.W. 345, 234 Mo. 78. (6) The plea of defendant for a reformation of the deed in question is not supported by any substantial evidence, and certainly not by "clear, cogent, and convincing" evidence as required by law. Conrath v. Houchin, 34 S.W.2d 190, 226 Mo.App. 261; Employers' Indemnity Corp. v. Garrett, 38 S.W.2d 1049, 327 Mo. 874; Binswanger v. Employers' Liability Assur. Corp., 28 S.W.2d 448, 224 Mo.App. 1025. (7) The plea of defendant Sarah Menz that William Pike is estopped to deny that Maggie Elizabeth Dunning was the owner of the property in question is not supported by any substantial evidence. The burden of proving estoppel is on the party asserting it and he must prove clearly and unequivocally every fact necessary to make an estoppel; nor can estoppel be raised by acts susceptible of two constructions, or by inference. Locke v. Bowman, 151 S.W. 468, 168 Mo.App. 121; National Match Co. v. Empire Storage & Ice Co., 58 S.W.2d 797, 227 Mo.App. 1115; Noell v. Remmert, 30 S.W.2d 1009, 326 Mo. 148; Blake v. Blake, 226 S.W. 837.
Limbaugh & Limbaugh, and Benson C. Hardesty for appellant Sarah Menz.
(1) The deed should be corrected and reformed as a deed from Thomas Dunning to Maggie Dunning alone. Sec. 1887, R.S.A. 1939; McCord v. Schaff, 279 Mo. 558, 216 S.W. 320; Winkler v. Ry. Co., 321 Mo. 27, 10 S.W.2d 649; 22 C.J., sec. 356, p. 321; Binswanger v. Employers' Liability Assur. Corp., 28 S.W.2d 448, 224 Mo.App. 1025; 18 C.J. on Deeds, sec. 499; 30 C.J. on Husband and Wife, sec. 275. (2) Furthermore, whether the deed be corrected and reformed or not, Sarah Menz is entitled to recover on the ground of Estoppel. Collins v. Rogers, 63 Mo. 515; Thomas v. Pullis, 56 Mo. 211; 21 C.J., p. 1061, sec. 10; Palmer v. Welch, 171 Mo.App. 580, 154 S.W. 435; Lange v. New York Life Ins. Co., 162 S.W. 589, 254 Mo. 488; Fulton v. K.C. Life Ins. Co., 148 S.W.2d 581, 236 Mo.App. 78; State ex rel. v. Hostetter, 139 S.W.2d 939, 346 Mo. 65; Cardinale v. Kemp, 309 Mo. 241; Wills v. Berberich's Delivery Co., 134 S.W.2d 125; Van Brock v. First Natl. Bank in St. Louis, 161 S.W.2d 258, 349 Mo. 425; Hardin v. Cunningham, 226 S.W. 872, 285 Mo. 457.
Bradley, C. Dalton and Van Osdol, CC., concur.
Action to determine title to certain described lots in the town of Delta, Cape Girardeau County. Plaintiff claims to be the sole owner, and so does defendant Sarah Menz. The trial court did not agree with either of these claims and plaintiff and defendant Sarah Menz appealed.
Defendant Thomas Dunning, surviving husband of Maggie Elizabeth Dunning, deceased, is the common source of title; defendant Joe Menz is the husband of appellant Sarah Menz; other defendants are the children of Essie Hutson, deceased mother of plaintiff Pike, and are his half brothers and sisters. Maggie Elizabeth Dunning was Pike's grandmother, and the mother of appellant Sarah Menz, who is Pike's aunt.
Hereinafter we refer to Maggie Elizabeth Dunning as Mrs. Dunning, to appellant Pike as Pike, and to appellant Sarah Menz as Mrs. Menz. Pike claims to be sole owner under provision (a) of the warranty deed (infra) executed by Thomas Dunning and his wife, Mrs. Dunning, on January 5, 1937. The answer of Mrs. Menz (her husband joined) is in two counts, and is in the nature of a cross petition. The first count is to reform the deed, and the second is to determine title. In the first count it is alleged that on January 5, 1937, Thomas Dunning sold the land to his wife, Mrs. Dunning, for $ 400.00; that she paid to him the $ 400.00; that he thereupon executed and delivered the deed and the property to her; that Mrs. Dunning continued in the actual possession of said property, claiming title thereto, from January 5, 1937, date of deed, until her death December 16, 1946; that she made at her own expense valuable improvements thereon; paid the taxes thereon; that her possession and claim of ownership were undisputed by Pike who stood by and saw her pay the taxes and make the improvements; that throughout the period of her possession, Pike recognized that said property belonged to his grandmother; that Pike is estopped to claim any interest or title in the property adverse to the title held by Mrs. Dunning. In the second count (to determine title), Mrs. Menz alleges that she is the owner in fee of said property as devisee under the will of Mrs. Dunning, her mother. And we might say here that Mrs. Menz, under the will, acquired whatever interest and title Mrs. Dunning had in the property. A guardian ad litem filed answer for the minor Hutson defendants. No special claim was asserted for them, but due proof was asked.
These questions are presented: (1) Did Mrs. Dunning take the whole fee title under the deed as Mrs. Menz contends, or if not, is Pike estopped to assert title as against whatever interest or title Mrs. Dunning took under the deed? (2) Did Pike take a defeasible whole fee interest under the provision (a) of the deed as he contends, or was the trial court's judgment and construction (see infra) correct?
A printed form was used in the preparation of the deed; the blanks were filled in with typewriter. We set out the deed, italicizing the typed parts. The deed follows:
(a) "The above land is hereby granted in fee simple to William Pike but if he die before Maggie Elizabeth Dunning, his grandmother, then to her for her life and then in fee simple to Essie Hutson, the mother of William Pike. (The (a) is our insertion for convenience in reference.)
"To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appeartaining unto the said parties of the second part, and unto their heirs and assigns, forever, the said Thomas Dunning hereby covenanting that he is...
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