The Bank of Brumley v. Windes

• Citation: 282 S.W. 696,314 Mo. 206
• Decision Date: 12 April 1926
• Docket Number: 25537
• Parties: THE BANK OF BRUMLEY v. JAMES WINDES, Appellant
• Court: United States State Supreme Court of Missouri

282 S.W. 696

314 Mo. 206

THE BANK OF BRUMLEY v. JAMES WINDES, Appellant

No. 25537

Supreme Court of Missouri

April 12, 1926

Appeal from Camden Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded.

Charles O. Calkin and Phil M. Donnelly for appellant.

(1) The deed should be carefully examined to get the intention of the grantor and in making this examination the entire instrument should be considered and not just portions of it. Taking the entire deed from its four corners, it was the intention of the grantor to convey a life estate to his daughter, and the remainder to the heirs of her body. It was not his intention to give her a fee simple estate, so that she could sell or dispose of it. Kane v. Roath, 276 S.W. 39; Chiles v. Bartleson, 21 Mo. 346; McCullock v Holmes, 111 Mo. 445; Reed v. Lane, 122 Mo. 314; Hunter v. Patterson, 142 Mo. 310; Linville v Greer, 165 Mo. 397; Utter v. Sidman, 170 Mo. 294; Williamson v. Brown, 195 Mo. 337; Groom v. Morrison, 249 Mo. 554; Sims v. Brown, 252 Mo. 440; Garrett v. Wiltse, 252 Mo. 699; Eckle v. Ryland, 256 Mo. 440; 18 C. J. 252, 256, 257, 258. (2) The written and printed parts of a deed are equally binding but if they are inconsistent the former will control the latter. 18 C. J. 258; De Paige v. Douglas, 234 Mo. 88. (3) A conveyance or devise to a person and the heirs of his body creates an estate tail. Miller v. Ensminger, 182 Mo. 204; Chiles v. Bartleson, 21 Mo. 344; Farrar v. Christy, 24 Mo. 468; Phillips v. La Targe, 89 Mo. 72; Wood v. Kice, 103 Mo. 329; Reed v. Lane, 122 Mo. 311; Clarkson v. Clarkson, 125 Mo. 381; Hunter v. Patterson, 142 Mo. 310; Hall v. French, 165 Mo. 430.

Barney Reed and Roy D. Williams for respondent.

(1) The deed created a fee-simple title. (a) When prefatory words conflict with the granting clause, the granting clause must prevail. 18 C. J. 331; Dickson v. Van Huse, 157 Ala. 459, 19 L. R. A. (N. S.) 719; Mount Olive Stave Co. v. Hanford, 112 Ark. 255; Richards v. Richards, 60 Ind.App. 34; Callaway v. Forest Park Highlands Co., 133 Md. 1; Johnson v. Borden, 86 Vt. 19. (2) The deed, upon its face, creates a fee-simple estate in Martha J. Windes. Garrett v. Wiltse, 252 Mo. 699; Adams v. Carey, 226 S.W. 833; Tennyson v. Walker, 190 S.W. 9; Rines v. Mansfield, 96 Mo. 394. (3) When the deed admits of two interpretations or is ambiguous, the deed operates more strongly against the grantor. Brawley v. Copelin, 153 S.W. 101; Bernero v. Real Estate Co., 134 Mo.App. 290. (4) The construction placed upon the deed by the parties is, at least, persuasive. Blumenthal v. Blumenthal, 251 Mo. 693; Warne v. Sarge, 258 Mo. 162. (5) In any event, the voluntary partition participated in by the respondent in this case, is binding, and will bar him from setting up title to the land deeded to Harry Windes, who was plaintiff's grantor.

OPINION

Ragland, P. J.

This is a statutory action to determine title. The land involved, 160.23 acres, is situated in Camden County. One William A. Bradshaw is the admitted source of title. On September 29, 1892, Bradshaw and his wife executed and delivered to their daughter, Martha J. Windes, a deed of which the following is a copy:

"THIS INDENTURE, Made on the 29th day of September A. D. One Thousand Eight Hundred and Ninety-two, by and between William A. Bradshaw and Jane Bradshaw, his wife, of Miller County, Missouri, parties of the First Part, and Martha J. Windes, our daughter and the heirs to her body, of the County of Miller, in the State of , parties of the Second Part.

"WITNESSETH: That the said parties of the First Part, in consideration of the sum of love and affection and One Dollar, to them 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 parties 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 Camden, and State of Missouri, to-wit: [Here follows a description of the land similar to that found in the petition filed herein.]

"To Have and To Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining unto the said party of the Second Part and unto her heirs and assigns, FOREVER, the said William A. Bradshaw 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 them or those under whom they claim, and that they 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.

"IN WITNESS WHEREOF," etc. (Italics ours).

At the time of the execution of the deed Martha J. Windes was married, but whether she had any children at that time the evidence does not with any certainty disclose.

On the day of July, 1916, the husband of said Martha J. Windes was dead and had left surviving him his widow and four sons, Elza, John, Harry and Fred, his heirs at law. These four sons had inherited from him 270 acres of land which they still held as tenants in common, but subject to the interest of their mother, presumably that of unassigned dower. There was evidence tending to show that on the date just mentioned an arrangement was entered into whereby Harry Windes was to convey to his co-tenants all of his interest in the 270 acres of land in consideration of their relinquishing to him all of their interest in the 160 acres held by the mother under the Bradshaw deed. One obstacle to the carrying out of the arrangement presented itself and that was the minority of Fred Windes. However, the notary whom they called in consultation for the purpose of having the proper conveyances prepared told them that it would not be necessary to have a deed from Fred; that the mother, Martha, had the title in fee to the 160 acres and that she could convey direct to Harry. Thereupon Harry deeded his interest in the 270 acres to his brothers, and his mother executed a general warranty deed whereby she purported to convey the 160 acres to him, reserving to herself a life estate therein.

On July 24, 1919, Harry Windes, Lula his wife, and the said Martha J. Windes, executed and delivered to the plaintiff a deed of trust on the 160 acres in question to secure the payment of a note for $ 2,500. This deed of trust was subsequently foreclosed; the plaintiff was the purchaser at the foreclosure sale and received a trustee's deed conveying to it all the right, title and interest of both Harry Windes and his mother, Martha.

On October 3, 1921, Elza Windes conveyed to John, the defendant herein, his interest, whatever it might be, in and to the land in controversy.

At the time of the institution of this suit, and at the time of the trial, in 1922, Martha J. Windes and two of her children, Elza and John, were living; Harry and Fred were dead; Harry had left surviving him four children, all of whom were living.

The petition is conventional. In his answer defendant claims the interests of himself and Elza Windes as contingent remaindermen. The reply avers that by reason of the agreement and understanding through which Harry Windes conveyed to his brothers his interest in his father's estate for their interests in their mother's land the defendant is now estopped to make any claim to the land in controversy.

The circuit court found and adjudged that William A. Bradshaw and his wife by their deed conveyed to Martha J. Windes the fee simple title in and to the land therein described and that plaintiff by mesne conveyances has acquired and is now the...