Shaw v. Bank of Dearborn

• Decision Date: 30 December 1929
• Docket Number: No. 27998.,27998.
• Citation: 23 S.W.2d 20
• Parties: JENNIE B. SHAW ET AL. v. BANK OF DEARBORN ET AL., Appellants.
• Court: Missouri Supreme Court

23 S.W.2d 20

JENNIE B. SHAW ET AL. v. BANK OF DEARBORN ET AL., Appellants.

No. 27998.

Supreme Court of Missouri, Division One.

December 30, 1929.

Appeal from Buchanan Circuit Court. — Hon. William H. Utz, Judge.

AFFIRMED.

James H. Hull and German, Hull & German for appellants.

The warranty deed of May 13, 1886, vested the fee simple title to the land therein described in Madora Shaw. Garrett v. Wiltse, 252 Mo. 699; Tennison v. Walker, 190 S.W. 9; Clinton Co. Trust Co. v. Metzger's Executors, 271 S.W. 1008; Welch v. Harvey, 281 Mo. 684; Adams v. Cary, 226 S.W. 833; Texas Co. v. Meador, 250 S.W. 148; Gannon v. Albright, 183 Mo. 238.

Terrence Riley and Gresham & Gresham for respondents.

The warranty deed dated May 13, 1886, conveyed to Madora P. Shaw a life estate with the fee simple in the heirs of her body. Secs. 2269, 550, R.S. 1919; Spencer v. O'Neill, 100 Mo. 49; Cox v. Jones, 229 Mo. 53; Charles v. White, 214 Mo. 187; Miller v. Ensminger, 182 Mo. 195; Stockwell v. Stockwell, 262 Mo. 671; Chew v. Kellar, 171 Mo. 215; Utter v. Sidman, 170 Mo. 248; Kane v. Roath, 310 Mo. 684; Bank v. Windes, 314 Mo. 206; Hunter v. Patterson, 142 Mo. 310; Owen v. Trail, 302 Mo. 292; Nations v. Spence, 235 S.W. 1064.

FRANK, J.

This is an action to partition certain lands located in Platte County. The venue was changed to the Circuit Court of Buchanan County, where a trial resulted in a decree in partition and order of sale as prayed in the petition. Defendants, Bank of Dcarborn and W.P. Harrington, trustee, appealed.

George Mellon is the admitted source of title. On May 13, 1886, Mellon executed and delivered to his daughter, Madora Shaw, a warranty deed, of which the following is a copy:

"This indenture, made on the 13th day of May A.D. One Thousand Eight Hundred and Eighty-six by and between George Mellon, of Platte County, State of Missouri, party of the First Part, and Madora Shaw & her children, her bodily heirs, of the County of Platte, in the State of Missouri, party of the Second Part:

"Witnesseth, That the said party of the First Part, in consideration of the love and affection for his beloved daughter and her bodily heirs 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 Platte, and State of Missouri, to-wit: [Here follows description of land as set out in plaintiff's petition.]

"Upon the condition that upon my death and the death of my wife, Lucinda Mellon, my daughter and her bodily heirs, the second parties, shall take immediate possession of the above described land, but it is further understood that my wife, Lucinda Mellon, is to have the use of all this and all my other land during her natural life.

"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 their heirs and assigns, Forever, the said party of the First Part 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 incumbrance 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 party of the Second Part, and unto her heirs and assigns, Forever, against the lawful claims and demands of all persons whomsoever."

About two years after the execution of this deed, George Mellon died, and shortly thereafter his wife, Lucinda Mellon died.

"Plaintiff Jennie B. Shaw is the widow of Joseph Shaw, a deceased son of Madora Shaw, and plaintiffs Lester Shaw and Leonard Eugene Shaw are the minor children of Jennie B. Shaw and her deceased husband.

"Defendants J.C. Shaw, Silvey Shaw and Jesse Shaw are the only children of Arthur Shaw, a deceased son of Madora Shaw.

"Defendants Juanita Paul, Donald Paul and Desmond Paul are the only children of Ella Shaw Paul, a deceased daughter of Madora Shaw, and defendant Lindsay Paul is their guardian.

"Defendants George L. Shaw, Ethel Shaw, and Edward Shaw are children of Madora Shaw.

"Defendant Annie Shaw Blakely was the daughter of Madora Shaw, and defendant Charles Shaw is a widower and was the husband of Madora Shaw.

"On October 1, 1915, Charles E. Shaw and Madora P. Shaw, his wife, George L. Shaw and wife, and Arthur Shaw and wife, executed a deed of trust to defendant W.P. Harrington, trustee for defendant Bank of Dearborn, which deed of trust described the land in question and was given to secure a note for $2766 of even date with the deed of trust, payable in one year, with eight per cent interest per annum from date."

It appears from the facts stated that Madora Shaw had seven children, three of whom died, each leaving descendants. The four living children and the descendants of the three deceased children are all parties to this suit either as plaintiffs or defendants. The deed of trust held by the Bank of Dearborn to secure the payment of its note was executed by Madora Shaw and Charles E. Shaw, her husband, and George L. and Arthur Shaw, sons of Madora Shaw. After the execution of this deed of trust Arthur Shaw died and left surviving him three children, J.C., Silvey and Jesse Shaw. The trial court found and adjudged the interests of the parties in said property and decreed that the interest of George L. Shaw and the interest of the three children of Arthur Shaw, deceased, was subject to the lien of the deed of trust held by the Bank of Dearborn.

The Bank of Dearborn and W.P. Harrington, its trustee, appealed. Their claim is that the entire property is subject to the lien of the deed of trust. This claim is based on the contention that the Mellon deed conveyed to Madora Shaw the fee simple title to the property, in which case the deed of trust thereafter executed by her was sufficient to and did convey the entire property.

Respondents contend, as the trial court held, that the Mellon deed conveyed to Madora Shaw a life estate only, with remainder in fee to her bodily heirs, and that the deed of trust thereafter executed by her and her two sons, George L. and Arthur Shaw conveyed only the life estate of Madora Shaw, which terminated at her death, and the contingent interest of the two sons George L. and Arthur Shaw.

The question presented is: What estate was conveyed to Madora Shaw by the Mellon deed?

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