Thiessen v. Moore

• Decision Date: 05 July 1922
• Docket Number: 17152
• Parties: Thiessen Et Al. v. Moore Et Al.
• Court: Ohio Supreme Court

137 N.E. 906

105 Ohio St. 401

Thiessen Et Al. v. Moore Et Al.

No. 17152

Supreme Court of Ohio

July 5, 1922

Deeds - Consideration - Recital conclusively determines course of descent, when - Divorce and alimony - Jurisdiction - Care and custody of children limited to minority - Collateral attack - Decree directing descent of realty after death of parents - Validity of deed releasing right to inherit.

1. The consideration paid for a conveyance of real estate determines its course of descent, and the recital in the deed of conveyance of the Payment of the consideration is "operative words" within tho meaning and intent of the declaration of this court In the case of Shehy v Cunningham, 81 Ohio St. 289, and for the purpose of determining the course of descent is conclusive.

2. In a divorce, alimony, custody, support and maintenance proceeding the court is without power to make a decree with reference to the maintenance of minor children beyond the date when such children shall arrive at their majority, and a decree which purposes and attempts to direct the course of the succession to the title of real estate after the death of the parents is in that respect ultra vires and void and may be attacked in a collateral proceeding.

3. A quitclaim deed attempting to release a right to inherit,which right is neither vested nor contingent, has no sub- ject-matter on which the instrument can operate, and is void.

At the request of the plaintiffs the court of appeals made the following separate finding of facts and conclusions of law the finding of facts reciting:

"First In November, 1893, Henry Moore, Sr., was a widower with three children, all of whom were of age. The plaintiffs, Henrietta Thiessen and Asa Moore are two of these children and the plaintiff George McClelland is a son and the only surviving child and heir at law of the third child, to-wit, Alva Johnson, now and long since deceased.

"On and before said date, Henry Moore, Sr., owned both parcels of real estate involved in this action, together with other real estate and certain personal property.

"Second In November, 1893, Henry Moore, Sr., married Ida C. Moore one of the defendants and there was born of this second marriage the following children:

"Erma Moore, August 28, 1894,

"Harold Moore, February 15, 1896,

"Henry Moore, Jr., January 24, 1898, and

"Wilbur Moore, March 5, 1900. The last of whom died intestate, unmarried and without issue January 17, 1918.

"Third: In March, 1894 after the marriage to said Ida C. Moore, said Henry Moore, Sr., said Ida C. Moore, his wife, joining with him, executed and delivered to Asa Moore, one of the plaintiffs, a Quit Claim Deed for 7 1/2 acres of land which Henry Moore, Sr., owned at the time of said second marriage and at the same time, Asa Moore executed and delivered to Henry Moore, Sr., a Quit Claim Deed which said deed is in the words and figures following, to-wit:

"`Know all men by these presents that I, Assa Moore and Mary Moore, wife of Assa Moore, the grantors, for divers good causes and considerations thereunto moving, and especially for the sum of valuable gifts and grants Dollars ($) received to my full satisfaction of Henry Moore, my father, the grantee, have granted, remised, released, and forever quitclaimed and do by these presents absolutely grant, remise, release and forever quitclaim untO the said grantee, his heirs forever, all such right and title as we the said grantors have or ought to have in and to the following described lands and tenements. Situated in the town of Avon, County of Lorain and State of Ohio, and know as part of Sec. No. (6) containing more or less real estate up to this date, and at his death. I the said Assa Moore, son of said Henry Moore, do hereby remise, release and forever quit claim to said grantee all my right and title to any and all personal estate that may be found to belong to said grantee at his death, subject to division between said grantees heirs. This heirs right of said grantees estate at his death. I the said Asa Moore grantor, son Relact of said Henry Moore, grantee. I do hereby relinquish, release and quit claim to forever.. under condition of deed of conveyance granted by said Henry Moore the said grantee as above, for lands and tenements to me the said Asa Moore. Deed dated March 12th, 1894, here to referred to. To have and to hold the above estate aforesaid with the appurtenances thereunto belonging, unto the said grantee, his heirs, so that neither I the said grantor nor my heirs nor any other persons claiming title through or under me shall or will here after claim or demand any right or title to the said estate or any part thereof; but they and every one of them shall by these presents be excluded and forever barred. And I the said Mary Moore wile of said Assa Moore, do hereby remise, release and forever quitclaim unto the said grantee and his heirs and assigns all my right and title of dover in the above described premises. In witness whereof we hereunto set our hands and seal the 12th day of March in the year of our Lord One Thousand Eight Hundred and Ninety-Four. * * *' [Duly signed and acknowledged.]

"It is agreed by the parties that the above deed mentions Section 6, whereas it should have mentioned Section 7. Section 6 was inserted therein by mistake by the scrivener.

"In April, 1896, Henry Moore, Sr., said Ida C. Moore, his wife, joining with him, deeded to Henrietta Thiessen, by Warranty Deed, one of the plaintiffs 8 1/2 acres of land which he owned at the time of said second marriage and she gave to her father, Henry Moore, Sr., a Quit Claim Deed; which said deed is in the words and figures following, to-wit:

"`Know all men by these presents that I, Henrietta Moore ne Teizen, and Jacob Teizen, husband of said Henrietta Moore, of the County of Lorain and State of Ohio, in consideration of the sum of a valuable consideration of Dollars, to me or us paid by Henry Moore, father of said Henrietta Teizen, the receipt whereof is hereby acknowledged, do hereby remise, release and forever quitclaim to the said Henry Moore, all my right and title as heir, or to my heirs and assigns forever the following real estate. Situate in the County of Lorain or elsewhere. That he the said Henry Moore, my said father, may now have, or that he may ever hereafter be possessed of, in consideration of full heirship, of all rights that I as heir at law have or ought to have in any lands or tenements, that he the said Henry Moore, father, relact, has, from and after this date. Also we do further release and quitclaim all our rights and title as heirs of said Henry Moore to all personal property that he the said Henry Moore may now have or may hereafter have, at his death, subject to distribution to his heirs, in consideration of the gifts and grant made to us as above set forth. To have and to hold said premises, and all other grants as above set forth, with all the privileges and appurtenances thereto belonging, to the said Henry Moore his heirs and assigns forever. In witness whereof the said Henrietta Teizen with Jacob Teizen her husband does hereby their names hereto attach, and said Henrietta Teizen does hereby relinquish all her right of dower in the premises, we hereto set our hands this 25th day of April in the year of our Lord One Thousand Eight Hundred and Ninety-six.

"`Signed and acknowledged in presence of

"`A. W. SHERBONDY,

HENRIETTA THIESSEN.

"`BARBARA WEIGART,

JACOB THIESSEN.'

"Fourth July 17, 1900, Ida C. Moore, began a proceeding for divorce and alimony, asking for the custody of her four minor children and for equitable relief, against Henry Moore, Sr. Said case being known as No. 6056, Lorain County Common Pleas Court. On March 29, 1901, Henry Moore, Sr., and his wife, Ida C. Moore, entered into an agreement, settling their differences and disagreements and dismissing said suit and on said date entered into an agreement, a copy of which is as follows:

"`This Memorandum of an Agreement, made this 29th day of March, 1901, between Henry Moore, party of the first part, and Ida C. Moore, party of the second part: witnesseth:

"`That all differences and disagreements between the two parties are mutually settled. The parties hereto are to return to their home in Avon and live together as man and wife each agreeing with the other, that he and she will hereafter faithfully keep and perform all their marital duties toward each other. The case now pending in the court of common pleas of Lorain County, Ohio, numbered 6056 is to be dismissed at the cost of party of the first part, except the witness fees and subpoening same of plaintiff.

"`If at any time in the future it would become necessary for the purpose of supporting and maintaining the parties hereto and their children to sell all or any portion of the lands owned by party of the first part in Section 7, Avon TOwnship, Lorain County, Ohio, and lying North of the Lake Wagon Road running across said Section, said wife hereto agrees to execute deed therefor to the purchaser or purchasers thereof, releasing her interest of dower therein.

"`In witness whereof, the parties hereto have hereunto set their hands the day and year first above written. * * *' [Duly signed and acknowledged.]

"Fifth At the time said divorce and alimony action was instituted and at the time of said settlement, said Henry Moore, Sr., owned the two separate parcels of land known by the parties hereto as the two acre plus tract which was valuable lake front property and the 54 acre tract. The first mentioned piece being north of the Lake Road, so-called, Avon Township, Lorain County, Ohio, and the second parcel being immediately opposite the first mentioned parcel and south of said highway. The settlement of...