Roberts v. Randleman

• Decision Date: 02 May 1944
• Docket Number: 38796
• Citation: Roberts v. Randleman, 180 S.W.2d 674, 352 Mo. 980 (Mo. 1944)
• Parties: Cora Roberts, James Dale, Ruby Hoffman and Mary Davis, Appellants v. Earl Randleman and Lottie Randleman, His Wife, and Alfred Snowden
• Court: Missouri Supreme Court

180 S.W.2d 674

352 Mo. 980

Cora Roberts, James Dale, Ruby Hoffman and Mary Davis, Appellants v. Earl Randleman and Lottie Randleman, His Wife, and Alfred Snowden

No. 38796

Supreme Court of Missouri

May 2, 1944

Rehearing Denied June 5, 1944.

Appeal from Vernon Circuit Court; Hon. Thomas W. Martin Judge.

Reversed and remanded (with directions).

Dan Z Gibson and Everett E. Teel for appellants.

(1) A life estate need not be created by express words, but if it is the clear intention from the whole instrument that the first taker is to have but a life estate, the added power of disposition will not convert it into an absolute ownership. Blumer v. Gillespie, 93 S.W.2d 87; Roth v. Rauschenbusch, 173 Mo. l.c. 591; Threlkeld v. Threlkeld, 141 S.W. l.c. 1124; English v. Ragsdale, 147 S.W.2d 653; Armor v. Frey, 126 S.W. 483; Van Every v. McKay, 53 S.W.2d 873. (2) The intention of the grantor, as gathered from the four corners of the instrument is the pole star of construction. See authorities cited under Point (1); Keller v. Keller, 92 S.W.2d l.c. 160.

Elliott & Kelso for respondents.

(1) Plaintiffs did not show a legal title to the land in controversy in themselves, and the demurrer at the close of plaintiffs' case should have been sustained. Alward v. Boatright, 193 S.W. 568; Kohnke v. Kohnke, 250 S.W. 53; Graham v. Graham, 297 Mo. 290, 249 S.W. 37; Studdard v. Wells, 120 Mo. 25, 25 S.W. 201. (2) This is an ejectment suit and can be maintained by plaintiffs only on a showing that they have an existing legal title, or a legally devised title from a common source. Akins v. Adams, 256 Mo. 2, 164 S.W. 603; McQuitty v. Steckdaub, 190 S.W. 590; Middleton v. Dudding, 183 S.W. 443; Chatman v. Chatman, 336 Mo. 98, 77 S.W.2d 87. (3) The warranty deed executed by James Morrison conveyed to Jennie Morrison a fee simple estate. This estate was not cut down, nor a remainder nor reversion created that vested legal title in plaintiffs by the clauses: "The second party shall have full right and privilege to sell or dispose of same at anytime for her own needs. But it is understood that after the death of the second party all property belonging to her shall go to the heirs of James Morrison as the second party shall see fit." Wead v. Gray, 78 Mo. 59; Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13; Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071. (4) Plaintiffs are estopped from asserting title to the land in controversy because they stood by with knowledge that in the appraisement of the estate of Jennie Morrison the transfer tax was assessed against and paid by defendant Lottie Randleman; that they knew 5 or 6 acres of the land was sold to the school board in May, 1937; that Lottie Randleman paid all the taxes on the land, and was in the exclusive and adverse possession thereof from the death of Jennie Morrison, September 24, 1932, claiming title thereto and the plaintiffs made no claim until the filing of this suit on August 11, 1942.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

PER CURIAM

Plaintiffs filed this suit in ejectment against defendants for possession of a tract of land situated in Vernon county, Missouri. The defendants by their answer asserted ownership of the land and asked the court to decree title in them and to declare that plaintiffs had no interest in the property. The trial court entered a judgment as prayed for by defendants declaring that the defendant Lottie Randleman was the owner in fee and that plaintiffs had no interest therein. Plaintiffs appealed.

Plaintiffs and defendants claimed ownership of the land by virtue of a deed executed by one James Morrison, September 24, 1928. Title depends on the interpretation to be placed on that deed. It reads as follows:

"General Warranty Deed.

"This Indenture, made on the 24th day of September 1928 by and between James Morrison, a Widower, of the County of Vernon and State of Missouri, party of the first part, and Jennie M. Morrison of the County of Vernon in the State of Missouri, party of the second part,

"Witnesseth, that the said party of the first part, for the and in consideration of the sum of One ($ 1.00) Dollars to him paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents Grant, Bargain And Sell, Convey And Confirm, unto the said party of the second part, her heirs and assigns, the following described lots, tracts or parcels of land, lying being and situate in the County of Vernon and State of Missouri, to-wit:

"All of Lot Nine (9) of the Northwest Quarter of Section Two (2) of Township Thirty-four (34) of Range Thirty-one (31) Except about Two and one third (2-1/3) acres out of the South west corner deeded to J. F. McKay and Henry Reed.

"Also all of that part of Lot Nine (9) and Ten (10) lying east of the Missouri Pacific Railway, in the Northeast Quarter of Section Three (3) Township Thirty-four (34) Range Thirty-one (31), not heretofore deeded for School purposes.

"The Second party to have full rights and privilege to sell or dispose of same at anytime for her own needs.

"But it is understood after the death of the second party that all property belonging to her shall go to the heirs of James Morrison, as the second party shall see fit.

"To Have And To Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging, or in anywise appertaining unto the said party of the second part, and unto her heirs and assigns forever; the said James Morrison hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that he has good right to convey the same, that the premises are free and clear of any encumbrances done or suffered by him or those under whom he claims, and that he will Warrant and Defend the title of the said premises unto the said party of the second part and unto her heirs and assigns forever, against the lawful claims and demands of all persons whomsoever."

The deed was recorded on February 18, 1929. James Morrison, author of the deed, died January 12, 1929. His wife had predeceased him. Jennie M. Morrison, named as grantee in the deed, died testate on September 24, 1932. By her will, executed August 30, 1930, she devised the land in question to defendant Lottie Randleman. The will in so far as it pertains to this property reads as follows:

"I hereby will and devise to my sister, Cora Roberts, the east half of lot nine (9), of the northwest quarter of section two (2) township thirty four (34), range thirty-one (31), Vernon County, Missouri.

"Item three.

"I hereby will and devise to Lottie Randleman the west one-half of lot nine (9), of the northwest quarter of Section two (2), township thirty-four (34), range thirty-one (31), Vernon County, Missouri, except about two and one-third (2 1/3) acres of the southwest corner thereof, and all of the residue of my personal estate remaining after the payment of my debts, including my funeral expenses.

"My reason for the bequest made to Lottie Randleman is my appreciation of her long service and continued kindness to me, and my desire to make some payment to her for the long and faithful service she has rendered to me."

The heirs of James Morrison were plaintiffs: Cora Roberts, a daughter, and James Morrison Dale, Ruby Hoffman and Mary Davis, grandchildren, being children of a daughter who died in the year 1934. Jennie M. Morrison, while not related to James Morrison, had lived in the home of the Morrisons since childhood and was treated by them as their child. That probably explains why Cora Roberts was referred to in the will by Jennie as a sister. There was a suggestion in the record that she may have been a half-sister, Mrs. James Morrison having been married twice. James Morrison had conveyed and bequeathed other property to his two daughters. The defendant Lottie Randleman had lived in the James Morrison household since about the year 1920. She married the defendant Earl Randleman on September 8, 1928, and with her husband continued to make her home with the Morrisons. Morrison, as stated above, died the following January and from then on the Randlemans cultivated the land on shares pursuant to an agreement with Jennie Morrison. Lottie Randleman in her testimony referred to Morrison as grandfather Morrison and to Jennie Morrison as Aunt Jennie. We assume that was because of her long residence with them and not because of any relationship. After the death of Jennie the Randlemans continued to occupy that portion of the land devised to Lottie. Mrs. Randleman paid an inheritance tax on the real estate and personal property she received through the will. Until shortly before the filing of this suit, August 11, 1942, all parties concerned evidently assumed that Mrs. Randleman was the owner in fee of the land. Plaintiff Dale was asked to sign a quitclaim deed for the purpose of perfecting the title of Mrs. Randleman in the land. This caused Dale to make an investigation and this suit soon followed. The defendants attempted to plead estoppel on the theory that plaintiffs had knowledge of the deed in question and the will of Jennie Morrison and with that knowledge permitted Mrs. Randleman to pay an inheritance tax on the land in the sum of $ 126.19; that the plaintiffs permitted the Randlemans to convey a portion of this land to a school district for school purposes; that they, the defendants, paid the taxes and were in possession from September 24, 1932, to the date of filing suit. The ten year statute of limitations had not expired at the time suit was filed. This case, under the facts...