Sims v. Brown

• Decision Date: 28 June 1913
• Parties: BENJAMIN B. SIMS et al., Appellants, v. SAMUEL B. BROWN
• Court: Missouri Supreme Court

158 S.W. 624

252 Mo. 58

BENJAMIN B. SIMS et al., Appellants, v. SAMUEL B. BROWN

Supreme Court of Missouri, Second Division

June 28, 1913

Appeal from Chariton Circuit Court. -- Hon. John P. Butler, Judge.

Affirmed.

B. R Dysart and Ben Eli Guthrie for appellants.

(1) By her deed of February 25, 1862, Catharine Weldon parted with her title to the real estate in controversy, and Catharine Brown took a life estate, and the plaintiffs took the remainder in fee, as the bodily heirs of Catharine Brown. Gray v. Ward, 234 Mo. 297; Huntor v. Patterson, 142 Mo. 310; Hall v. French, 165 Mo. 430; Clarkson v. Clarkson, 125 Mo. 381. (2) The attempted reservation is inconsistent with and repugnant to the granting clause in said deed and is destructive of the grant and must be rejected in the construction of the deed. Utler v. Sidman, 170 Mo. 285; Gannon v Pank, 200 Mo. 75; Ressner v. Philips, 189 Mo. 515; Cornet v. Cornet, 248 Mo. 184. (3) To give effect to the reservation would be to nullify the deed. One cannot sell property and keep it at the same time. In effect she says "although I have sold the property to A, I reserve the right to sell it to B, if I so desire." When she sold the property by a subsequent deed to Benjamin Brown, she had not regained the title theretofore made to Catharine Brown and her bodily heirs, and hence her subsequent deed to Benjamin Brown was a nullity. Where a grant has been made in the body of the deed vesting the title, any subsequent provision in the deed, inconsistent with and repugnant to the granting clause, will be ignored, and especially so if the reservation works a dstruction of the grant. See cases under point 2; Gray v. Ward, 234 Mo. 291; Haines v. Weirick, 155 Ind. 548; Wilkins v. Norman, 139 N.C. 40. "A grantor cannot destroy his own grant." Maker v. Lazell, 83 Me. 562. (4) It is evident that this attempted reservation is neither a condition precedent, nor a condition subsequent, nor is it operative as a defeasance. There is no provision in the deed for a revertor. Studdard v. Wells, 120 Mo. 25; McAnaw v. Tiffin, 143 Mo. 667; Miller v. Quick, 158 Mo. 495.

Hammett & Howard for respondent.

(1) The language of the instrument in question being set up by plaintiffs as the foundation of their claim and title stamps it as testamentary in character and an attempted disposition of certain property by will on the part of Catharine Weldon. No particular form is requisite to constitute a valid devise; an instrument may thus operate which is to take effect after the death of the maker, although its general form is that of a deed. Miller v. Holt, 68 Mo. 587. The instrument in question was an attempted testamentary disposition of the property. It has none of the features of the deed except the terms grant and relinquish and scroll for a seal and the acknowledgment and filing for record while all its other features are clearly that of an attempted last will and testament. The mere fact that the instrument was acknowledged and recorded does not change its character. Murphy v. Gabbert, 166 Mo. 596. If the intent was clear upon the face of the instrument that the parties designed same to operate as a deed, notwithstanding its form, the courts regarding more the substance than the form, would give effect to the intent, but where such intent is not apparent and the form of the instrument is that of a will, it must be regarded as a will. Miller v. Holt, 68 Mo. 588. An instrument of writing to be good as a deed must pass a present interest in the property attempted to be conveyed, and where it takes effect and becomes operative alone upon the death of the grantor, it is testamentary in character and insufficient as a deed. The test to determine whether an instrument is a deed or will is whether it is to take effect in praesenti or after the death of the maker. Murphy v. Gabbert, 166 Mo. 596. The instrument in the Murphy case, was acknowledged. (2) It is essential to the validity of a deed conveying an estate of freehold of inheritance to commence in the future, that the right to the future estate conveyed vests in the grantee immediately, though possession be deferred. Aldridge v. Aldridge, 202 Mo. 572. (3) If the instrument, at the instant of its delivery, if delivered, did not carry to the grantee the estate described subject to be defeated on the happening of a contigency named, it was not a deed. If it was a mere gift to take effect only on the death of the maker, then it was ineffectual for that purpose if not executed in the manner prescribed by law for the execution of a will and the instrument is invalid and there is no foundation for plaintiff's claim of title. Aldridge v. Aldridge, 202 Mo. 565. (4) There is no proof in this case on the part of plaintiffs that the instrument of writing was ever delivered to the grantee whoever it was, Rachel Catharine Brown or Drucilla Mitchell. Deeds to pass title must be delivered. Miller v. Holt, 68 Mo. 586.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C.

This is an action under section 2535, Revised Statutes 1909, to quiet title to an undivided one-sixth interest in the southwest quarter of section 2, township 55, range 14, containing 160 acres more or less, in Randolph county, Missouri. The suit was originally begun in the circuit court of Randolph county, and was afterwards by agreement of the parties transferred to the circuit court of Chariton county, where trial was held, resulting in a judgment finding that defendant is owner of said land and that plaintiffs have no title or interest therein. Plaintiffs thereupon appealed to this court.

There is little dispute over the facts. Most of the evidence adduced was documentary in form. One Catharine Weldon was the common source of title. Plaintiffs (representing one-sixth of the bodily heirs of Catharine Brown) claim to have acquired their title through an instrument, which they claim is a deed, executed February 25, 1862, by said Catharine Weldon to said Catharine Brown and another. Defendant claims title through a deed dated May 4, 1868, executed by said Catharine Weldon to one Ben C. Brown, and by mesne conveyances from said Brown to the defendant, conveying the land in controversy.

The determination of the matters involved in this suit depends upon the construction given to the above-mentioned instrument, dated February 25, 1862, from Catharine Weldon to Catharine Brown and another. It is therefore necessary that said instrument be copied in full. It is as follows:

"Know all men by these presents, that I, Catharine Weldon, of the county of Randolph and State of Missouri, knowing the uncertainty of life and the certainty of death, and being desirous of making such disposition of my earthly effects as I think right and proper, do hereby make the following disposition of the same (to-wit) for and in consideration of the love and affection I have for my daughter Catharine Brown, wife of Ben Brown, and for the further consideration of the fact of the said Catharine Brown and Ben Brown, her husband, having taken care of me in my old age, I do hereby give, grant and relinquish to my said daughter Catharine Brown and the heirs of her body at my death, the following described slaves, and all their increase, or as many of them as may then be living and belonging to me, to-wit: Mary Catherine, aged twenty-eight years, Martha Ione, aged thirteen, Mary Susan, aged six, Hager, aged three, Mary, aged fourteen, and Betty, aged twelve. And also all the household and kitchen furniture, and stock of every kind and description of which I may die possessed. And also all the money, cash, notes or other evidences of debt of every kind. All for the benefit of my said daughter, Catharine Brown, and the heirs of her body, with only this reservation (to-wit) The said Catharine Brown is to take care and well provide for my servant Hannah during her lifetime. And if it should become necessary, from any cause, for me to sell or otherwise dispose of any of the slaves above enumerated, during my lifetime, I reserve the right to do so. And I do also hereby give, grant and relinquish to my other daughter, Drucilla Mitchell, for the love and affection I have for her the following described lands in Randolph county, Missouri, under however, the following restrictions (to wit): I do hereby appoint and request my son-in-law Ben Brown to act as trustee for my said daughter Drucilla Mitchell. And he is requested that at any time after my decease, he is to select any part of said land, not over eighty acres, and sell the same either publicly or privately, and pay over at once the proceeds thereof to my said daughter absolutely, for the use and benefit of her and her bodily heirs, and the remainder of said land he is to sell at such time and place as he may think proper, and on such terms as he may think most advantageous. And he is to pay semi-annually the interest arising from said sale of the land to my said daughter Drucilla Mitchell for the benefit of her and her bodily heirs, but if the said Drucilla Mitchell should die before I do, then only the proceeds of the eighty acres above spoken of is to go to the heirs of her body, and the proceeds of the balance of said land is to be paid to my daughter Catharine Brown for the sole use of herself and her bodily heirs. And it is also my wish that the death of my said daughter Drucilla Mitchell, the principal for which said except the eighty acres aforesaid, shall be paid to my said daughter Catharine Brown for the use and benefit of herself and bodily heirs. The land hereby given and granted to my said daughter for the benefit of herself and bodily heirs, upon the terms and conditions as therein set forth, include all the land purchased by me from William King and wife, except the portion of...