Smith v. Egan

• Decision Date: 02 June 1914
• Docket Number: No. 16476.,16476.
• Citation: 258 Mo. 569,167 S.W. 971
• Parties: SMITH v. EGAN et al.
• Court: Missouri Supreme Court

167 S.W. 971

258 Mo. 569

SMITH v. EGAN et al.

No. 16476.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

DEEDS (§ 105)—CONSTRUCTION—HEIRSHIP— "NEAREST BLOOD KIN."

A deed recited that the grantors should stand seised of the lands in controversy with all the privileges and appurtenances to the use of themselves for life and to the use of the grantee and to her nearest blood kin, habendum to the grantee and to her nearest blood kin forever. Held that, the grantee having died, leaving her father and mother and brothers and sisters her surviving, the father and mother were the nearest blood kin and took under the deed, to the exclusion of her brothers and sisters.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Ejectment by Jefferson D. Smith against Virginia V. Egan and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action of ejectment to recover the possession of one-ninth interest in 80 acres of land situated in Saline county. The petition was in the usual form, and the answer was a general denial and an equitable defense. The judgment of the circuit court was in favor of the defendant, and the plaintiff appealed the cause to this court.

The facts are practically undisputed and are as follows:

On and along prior to March 26, 1899, Paschal E. Smith and Nancy J. Smith were husband and wife, and were the parents of ten children, three of whom were dead; all leaving surviving children. Another one of them was named Mary Margaret Smith, who was an invalid and an imbecile. The plaintiff and defendant were also their children.

Upon the date mentioned Paschal E. Smith and his wife, Mary J. Smith, signed and acknowledged a certain deed, the one in controversy in this suit. This deed describes 280 acres of land, 80 of which is the land in controversy. The consideration expressed in the deed is $1 "and the further consideration of love and affection." This deed, as previously stated, was from Nancy J. Smith and Paschal E. Smith, as parties of the first part, and Mary Margaret Smith, as party of the second part, and recites that the parties of the first part "remise, release and forever quitclaim unto said party of the second part" the 280 acres of land therein described, with the following clause therein, to wit:

"It is expressly understood and agreed that said parties of the first part will henceforth stand seized of the lands above described, with all the privileges and appurtenances to the same belonging for the use and purposes following, to wit: To the use of the said parties of the first part during their natural lives and the natural life of each of them, without impeachment of waste and after the decease of both of the said parties of the first part to the use of Mary Margaret Smith and to her nearest blood kin."

The habendum clause contains this language:

"To have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part, and to her nearest blood kin forever."

This deed was duly recorded, but this record contains no direct evidence that it was delivered to Mary Margaret Smith, the grantee, or that the grantors knew that it was recorded.

Mary Margaret Smith died, without issue, September 9, 1899. Her father, Paschal E. Smith, died February 16, 1903, and her mother, Nancy J. Smith, died July 5, 1907. Shortly after Mary Margaret Smith departed this life, her father and mother, the grantors, in the deed previously mentioned, divided said 280 acres of land among four of their other children, and in so doing they conveyed to the defendant, Virginia V. Egan, the 80 acres in controversy, by deed dated December 11, 1899.

Harvey & Bellamy, of Marshall, for appellant. Duggins & Duggins and Virgil V. Huff, all of Marshall, for respondents.

WOODSON, P. J. (after stating the facts as above).

I. The appellant contends that the deed of March 26, 1899, from Paschal E. Smith and wife to Mary Margaret Smith, their daughter, vested in her and her nearest blood kin forever the remainder of the entire 280 acres of land described therein, and that the deed of Paschal E. Smith and wife, dated December 11, 1899, conveying the 80 acres in controversy to their daughter, the respondent, was inoperative because they had previously conveyed the title thereto to Mary Margaret Smith, and, he being her brother, he inherited from her one-ninth of the 280 acres, and consequently is entitled to one-ninth of the 80 involved in this suit.

Counsel for respondent contends:

"First. That there is no evidence to show any delivery of the deed to Mary Margaret Smith; and that there is no evidence to show that either Mr. Smith or Mrs. Smith ever recorded the deed or knew of its record; that the subsequent deeding of the property to their other children negatives any delivery or knowledge thereof.

"Second. That the said deed is testamentary in its character and consequently inoperative as a deed.

"Third. That, if the title passed under said deed to Mary Margaret Smith, then at her death her father, Paschal E. Smith, and her mother, Nancy J. Smith, were her nearest blood kin and met the terms of said deed; and the full title immediately, upon the death of their daughter, Mary...