Reed v. Lane

• Citation: 26 S.W. 957,122 Mo. 311
• Parties: Reed et al., Appellants, v. Lane et al
• Decision Date: 28 May 1894
• Court: United States State Supreme Court of Missouri

26 S.W. 957

122 Mo. 311

Reed et al., Appellants, v. Lane et al

Supreme Court of Missouri, First Division

May 28, 1894

Appeal from Barry Circuit Court. -- Hon. Joseph Cravens, Judge.

Affirmed.

Frost & Wear for appellants.

(1) Martha A. May, the mother of appellants, bought the lands in controversy and paid value for them; hence the grantor had no right to limit the interest of his grantee. Wood v Kice, 103 Mo. 329. (2) And it is plain that he had no intention of retaining a reversionary interest therein; and it is also plain from the circumstances and evidence in the case that the grantee had no such intention. But according to the construction of the deed by the court had Mrs. May died without heirs by the body of Silas May, the whole property would have reverted to the grantor, L. J. Blankenship contrary to his intention or expectation. 6 Am. and Eng Encyclopedia of Law, title, Estates, page 879, subdiv., Estate Tail; Tiedeman on Real Property, sections 45 and 46. (3) In the construction of deeds the intention of the grantor is the first thing to be determined, and effect given to that intention, if it can be determined. Rines v. Mansfield, 96 Mo. 394. (4) Martha A. May took the fee simple estate to the lands described in the deed, as the conveyance is to her and her assigns, and not the assigns of her heirs by the body of Silas May only. The word "assigns," as used in the deed, means "assignees." 1 Burrill's Law Dictionary.

N. Gibbs and T. M. Allen for respondents.

(1) The deed to Martha May, being "to her and her heirs by the body of Silas May only," conveyed to Martha May an estate for life, and remainder in fee to her children begotten by Silas May. The word "heirs," in the deed, means children. The words used in this deed are substantially the same as those used in the devise, passed upon by this court in Bone v. Tyrrell, 113 Mo. 175. R. S. 1889, sec. 8836; Gen. Stat. Mo., 1865, page 442, sec. 4; Bone v. Tyrrell, 113 Mo. 175; Godman v. Simmons, 113 Mo. 122; Emmerson v. Hughes, 110 Mo. 627. (2) When an instrument is to be construed, a knowledge of its subject-matter, and the relation of the parties become important, and parol evidence as to the same is admissible to aid in its interpretation. Black River Lumber Co. v. Warner, 93 Mo. 374. (3) The consideration clause in a deed is always open to explanation and contradiction. Fontaine v. Saving Institution, 57 Mo, 552; Hollocher v. Hollocher, 62 Mo. 267; Edwards v. Smith, 63 Mo. 119; McConnell v. Brayner, 63 Mo. 461; Baile v. Ins. Co., 73 Mo. 371; Bank v. Aull, 80 Mo. 199; Williams v. Crow, 84 Mo. 298.

OPINION

Macfarlane, J.

This suit is ejectment to recover three undivided tenths of certain real estate, situate in Barry county. There are three plaintiffs, each of whom claim a right to one undivided tenth of the land. The land in question was conveyed by L. J. Blankenship to Martha May by deed dated the first day of February, 1878. This deed recited a consideration of $ 1,500 paid by Martha May, as party of the second part, and granted, bargained and sold the land "unto the said party of the second part, her heirs by the body of Silas May only and assigns." The habendum was "unto the said party of the second part, and unto her heirs by the body of Silas May only and assigns forever."

Silas May was the husband of the said Martha May at the date of the deed. Martha May died before the institution of this suit, leaving six children by her marriage with Silas May. Defendants are in possession under deeds from five of these children. Plaintiffs are children of the said Martha May by a former marriage. The land was bought and paid for by Silas May, and the character of the deed and the limitations therein were presumably made under his directions.

The court held, by a declaration of law given, that, under the deed in question, the said Martha May took an estate in the land for life, with remainder in fee to her children begotten by Silas May. The judgment was for defendants, and plaintiffs appealed.

The proper construction to be given the deed from Blankenship to Martha May presents the sole question for our consideration in this case. If the language of the deed created in the grantee what would, at common law have been an estate tail special, then section 8838 of our statute converted it into an estate for life only of the grantee, with remainder in fee to her heirs begotten by her husband, Silas May. This effect of the statute upon such estates has been settled by a number of decisions of this court, and that question need not be again considered. Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979; Bone v. Tyrrell, 113 Mo. 175, 20 S.W. 796. The sole question, as to construction, then is, whether this deed created an estate tail, and we think it did.

As Silas May, the husband of the grantee, bought and paid for the land, that he should desire the inheritance to go to his own children was but natural, and that he did so desire and intend is clearly expressed in the deed. Being a conveyance upon a full consideration, paid by the husband, it will be presumed that he intended it as a provision for his wife, and that the character of the estate granted, was made by the grantor under his direction. To effectuate the intention of the parties, if, to do so, is consistent with the rules of law, should govern us in the construction of the deed.

In speaking of the words necessary to create an estate tail Blackstone says: "As the word heirs is necessary to create a fee, so * * * the word body, or some...