Rummerfield v. Mason

• Court: Missouri Supreme Court
• Writing for the Court: WESTHUES
• Citation: Rummerfield v. Mason, 179 S.W.2d 732, 352 Mo. 865 (Mo. 1944)
• Decision Date: 03 April 1944
• Docket Number: 38739
• Parties: Hazel May Rummerfield, of age, and Albert H. Mason and Ruby P. Mason, minors, by their next friend, Mary C. Mason, Appellants, v. George H. Mason

179 S.W.2d 732

352 Mo. 865

Hazel May Rummerfield, of age, and Albert H. Mason and Ruby P. Mason, minors, by their next friend, Mary C. Mason, Appellants, v. George H. Mason

No. 38739

Supreme Court of Missouri

April 3, 1944

Rehearing and Motion to Transfer to Banc Denied May 2, 1944.

Appeal from Adair Circuit Court; Hon. Noah W. Simpson Judge.

Reversed and remanded (with directions).

S H. Ellison, J. E. Rieger, and Roland A. Zeigel for appellants.

(1) The judgment should have been for the plaintiffs to the extent of decreeing they were the owners of a three-fourths interest in said lands, as tenants in common with George H. Mason. Waddell v. Waddell, 99 Mo. l.c. 344-5; Triplett v. Triplett, 60 S.W.2d l.c. 15. (2) The deed in question is apparently a deed of "gift" and it is the rule in Missouri that the donor has the right to dispose of his property as he sees fit. Tennison v. Walker, 190 S.W. 9 (5). (3) Deeds are construed according to the intention of the grantor, as revealed by the instrument. The court below did not so construe. Leeper v. Leeper, 147 S.W.2d 660; Davidson v. Davidson, 167 S.W.2d 641. (4) In construing a deed court must give effect and meaning to all its language. The construction must be based on the language of the deed. Monroe v. Lyons, 98 S.W.2d 544, and it cannot add (or exclude) words modifying clear meaning of deed. Carr v. Lackland, 112 Mo. 442; Seested v. Applegate, 26 S.W.2d 796. (5) The order in which grantees are named in a deed is immaterial and does not give greater, or less, interest to first named. Johnson v. Calvert, 260 Mo. 442. (6) The grant to the "children of George Mason" will not fail on the grounds of uncertainty. It falls within the rule that anything is certain which can be made certain. Hubbard v. Whitehead, 221 Mo. 672; McGee v. Spiro, 107 Mo. 452; Hamilton v. Pitcher, 53 Mo. 334; Smith v. Egar, 258 Mo. 569. (7) Recital or preamble in a deed prevails over subsequent repugnant clauses. This is one reason why our case differs from the Tygard Case, 204 Mo. 200, relied on by respondent, as here there are no repugnant clauses, or even words. Petty v. Griffith, 165 S.W.2d 412; Monroe v. Lyons, 98 S.W.2d 544. (8) A deed conveying land to the "children of Thomas Johnson," which is the language found in the Mason deed, conveys title to the children. Johnson v. Calvert, 260 Mo. 442; Matthews v. O'Donnell, 233 S.W. 451.

Philip J. Fowler and E. M. Jayne for respondent.

(1) The judgment and decree of the court for respondent was in accordance with the recognized and established rules of law of Missouri for construction of deeds, and the decisions cited under this point are rules of property and were decided before and were in effect at the time of the execution of the deed in controversy. The law, as announced in them, was and is a party of the conveyance itself, and makes the trial court's judgment correct. Tygard v. Hartwell, 204 Mo. 200; Garrett v. Wiltse, 252 Mo. 699. (2) Appellants could not, under any circumstances, prevail on the theory that the deed created a tenancy in common, because two of appellants were not in being at its date, and a tenancy in common could not have been created as to them. Tygard v. Hartwell, 204 Mo. 200; Kinney v. Mathews, 69 Mo. 520; Rines v. Mansfield, 96 Mo. 394. (3) The fact that the deed was drawn by one learned in the law is significant, and invokes the rule that the wording of the deed is to be construed strictly in accordance with the law. Tennison v. Walker, 190 S.W. 9; 18 C.J. 259, sec. 210; Tygard v. Hartwell, supra. (4) It is the intention of the grantor, expressed in the deed, and not his intention which might be shown by extrinsic evidence, that governs. It is what he said and not what he intended to say. Ashbaugh v. Ashbaugh, 201 S.W. 72; McMahill v. Schowengerdt, 183 S.W. 605; 18 C.J. 254. (5) The law at the date of the conveyance is controlling. Ashbaugh v. Ashbaugh, 201 S.W. 72; Frame v. Humphreys, 154 Mo. 336; Biddle v. Van Deventer, 26 Mo. 500. (6) No construction that conflicts with settled rules of law can be given. 18 C.J. 254; Biddle v. Van Deventer, supra; Ashbaugh v. Ashbaugh, supra.

Westhues, C. Bohling, C., concurs; Barrett, C., absent.

OPINION

WESTHUES

This is a suit to partition a tract of land containing about eighty acres situated in Adair county, Missouri. Plaintiff, Hazel May Rummerfield, of age, and Albert H. Mason and Ruby P. Mason, minors, by their next friend, in their petition claimed that they and the defendant, George H. Mason, their father, were tenants in common, each owning a one-fourth undivided interest in the lands. The defendant filed an answer in which he claimed the whole title. He also filed a cross-petition asking the court to try and determine title, to vest title in him and to remove a cloud from his title which he claimed was placed thereon by the wording of the deed that gave rise to this lawsuit. The trial court entered a decree for the defendant and plaintiffs appealed.

All parties claim under the same deed. The two minors were represented by their mother as next friend. The defendant and his wife were divorced before the institution of this lawsuit. The deed under which the parties claim were executed by John H. Mason on March 31, 1923. The interpretation of the deed is the task before us. It reads as follows:

"This indenture, made on the thirty-first day of March One Thousand Nine Hundred and Twenty-Three (1923) by and between John H. Mason a single man of Adair County, Missouri party of the first part, and George H. Mason and his children of the County of Adair in the State of Missouri, parties of the second part.

"Witnesseth, that the said party of the first part, in consideration of the sum of One Dollar, to him paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents, Grant, Bargain and Sell, Convey and Confirm, unto the said parties of the second part, their heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situated in the County of Adair and State of Missouri, to-wit:

"All of the southeast quarter of the southwest quarter of Section twenty-five (25) and the Northeast quarter of the northwest quarter of section thirty-six (36) Township sixty three (63) of range fourteen (14) and commencing at a point 26 and 2/3 rods south of the northeast corner of the southwest quarter of the southwest quarter of Section twenty five (25) Township sixty three (63) of range fourteen (14) and running thence south 66 and 2/3 rods, thence west 2 rods to place of beginning. Also, five and one fifth (5 and 1/5) acres off of the East end of the South eight (8) acres of the north fifteen (15) acres of the northwest quarter of the northwest quarter of section twelve (12) Township sixty two of range fourteen (14).

"The Grantor herein reserves to himself the use and control of said lands so long as he shall live.

"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 parties of the second part, and unto their heirs and assigns forever; the said first party 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 said 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 to the said premises unto the said parties of the second part and unto their heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.

"In Witness Whereof, the Said Party of the first part has hereunto set his hand and seal, the day and year first above written.

JOHN H. MASON (Seal)"

The grantor in the deed, John H. Mason, retained possession of the land until his death July 26, 1939. At the time of the execution of the deed George H. Mason had one child, plaintiff, Hazel May Rummerfield. The other children, plaintiffs Ruby P. Mason and Albert H. Mason, were born after the execution of the deed but before the grantor's death. It was agreed that the three plaintiffs were the only children of the defendant.

Defendant's contention is that he received an absolute fee simple title to the land by the deed in question subject only to the life estate of the grantor. Plaintiffs claim that under the deed they and the defendant own the land as tenants in common. Defendant in his brief says:

"It is the intention of the grantor, expressed in the deed, and not his intention which might be shown by extrinsic evidence, that governs. It is what he said and not what he intended to say."

That is a correct and concise statement of the law. Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13, l.c. 15 (1, 2); 26 C.J.S. 324, sec. 83.

In defendant's argument he says:

". . . respondent submits that if there ever was a 'spotted hog' case, the case of Tygard v. Hartwell is one, and that the decision in that case, being a rule of property, is more subject to the rule of stare decisis than decisions which affect only general matters."

Tygard v. Hartwell is reported in 204 Mo. 200, 102 S.W. 989. A comparison of the deed in the Tygard case with the deed now before us will disclose that they are entirely different. If the Tygard case is a "spotted hog" case then the one before us has no spots. In the Tygard deed the grantee was described as "James F. White of the second part". Further in the deed we find: "do hereby sell and convey unto James F. White, party of the second part." The only mention of anyone else except White was in the forepart of the deed where it read: "That the party of the...