Rutherford v. Tracy

• Decision Date: 31 August 1871
• Citation: 48 Mo. 325
• Parties: W. T. RUTHERFORD, Appellant, v. B. N. TRACY et al., Respondents.
• Court: Missouri Supreme Court

48 Mo. 325

W. T. RUTHERFORD, Appellant,

v.B. N. TRACY et al., Respondents.

Supreme Court of Missouri.

August Term, 1871.

Appeal from Macon Circuit Court.

W. A. Hall, for appellant.

The deed from plaintiff to said Demeter's grantor did not convey the whole of lot 3. In giving construction to the deed, the whole must be taken together to ascertain its meaning. (Campbell et al. v. Johnson, 44 Mo. 248.)

Plaintiff was not estopped by his acts from claiming his lot, because defendant was better informed of its location than the plaintiff, and had all the means in his favor of ascertaining its true location. The doctrine of estoppel is always applied with great caution, and especially where used to enlarge a grant by deed. (3 Hill. 221; 8 Wend. 484.)

Henry and Williams, for respondents.

I. Appellant's deed to Amos Ladd conveyed all of lot No. 3 in block 87. The succeeding description by metes and bounds is repugnant to the description of the land by its number on the plats, and will be rejected. (Cutter v. Tufts, 3 Pick. 272; Sprague v. Snow, 4 Pick. 54; Melvin v. Proprietors of Locks, etc., 5 Metc. 15, overruling Barnard v. Martin, 5 N. H. 536; see also Greenl. Cr., tit. Deed, 32, ch. 20, § 8; Tyler on Eject. 569-70, and cases cited.)

II. The declarations of Hayden L. Rutherford, while he was the owner and in possession of the lot in controversy, were admissible as evidence against the appellant, who claimed under him. (Tyler on Eject., supra; Cavin v. Smith, 24 Mo. 221; Wood v. Hick, 36 Mo. 326.)

WAGNER, Judge, delivered the opinion of the court.

The whole merits of this case depend upon two questions: first, what is the true meaning and intent of the granting clause in the deed conveying the property in controversy; and, second, whether an estoppel could be predicated upon the facts disclosed by the evidence. The action was ejectment for a part of lot 3 in block 87, in the town of Macon; and the defendants, who are in possession, claimed the entire lot by conveyance. The language conveying the premises is as follows: “Lot No. 3 in block 87, in the old town of Hudson, now Macon; beginning at the northeast corner, thence west to the alley, thence south eighteen feet, thence east the length of the lot, thence north eighteen feet to the beginning.”^a1

The defendants now contend, and the court so instructed, that this description passed the fee to the whole lot. The old books contain a great deal of refined and technical learning on this subject. They say that if there be two clauses or parts of a deed repugnant the one to the other, the first part shall be received and the latter rejected, unless there be some special reason to the contrary; but in the case of a will containing two repugnant clauses or parts, the first shall be rejected and the last received. That the first deed and the last will shall operate, is an ancient maxim. (Plowd. 541; Co. Lit. 112; Shep. Touch. 88.) Upon the rules as laid down in the old authorities, Judge Metcalf, in 23 American Jurist, makes some very sensible remarks. “In modern times,” he says, “this maxim has very limited operation. A reason to the contrary is almost always found. The rules of construction now applied in cases of repugnancy give effect to the whole and every part of a will, deed, or other contract, when that is consistent with the rules of law and the intention of the party; and when this is impossible, the part which is repugnant to the general intention, or to an obvious particular intention, is wholly rejected. Parts which were once regarded as repugnant are now deemed consistent.”

Greenleaf, in his edition of Cruise on Real Property, lays down the doctrine that the modern rule is to give effect to the whole and every part of the instrument, whether it be a will or deed, or other contract; to ascertain the general intention, and permit it, if agreeable to law, whether expressed first or last, to overrule the particular; and to transpose the words, whenever it is necessary, in order to carry the general intention plainly manifested into effect. (2 Greenl. Cr., tit. Deed, ch. 12, § 26, note 1, and cases cited.) Mr. Washburn declares that when the parts of a deed are found inconsistent with each other, the courts always give effect to every part of the deed if it is possible, consistently with the rules of law. (3 Washb. Real Prop. 343.) To the same purpose is the recent decision in this court in the case of Campbell et al. v. Johnson, 44 Mo. 247. If there is an explicit and unambiguous grant of a thing, any exception or reservation which is manifestly contradictory will be rejected; but the intention must be sought after and carried out, if consistent with the rules of law. It is, however, well settled that a deed must be construed ex visceribus; the nature and quantity of the interest granted are always to be ascertained from the instrument itself, and fixed monuments always control courses and distances. The Supreme Court of the United States say that it is a universal rule that whenever natural or permanent...