Triplett v. Triplett

• Decision Date: 20 April 1933
• Docket Number: No. 30381.,30381.
• Citation: 60 S.W.2d 13
• Court: Missouri Supreme Court
• Parties: JOHN A. TRIPLETT v. MARTIN E. TRIPLETT ET AL., Appellant.

60 S.W.2d 13

JOHN A. TRIPLETT v. MARTIN E. TRIPLETT ET AL., Appellant.

No. 30381.

Supreme Court of Missouri, Division Two.

April 20, 1933.

Appeal from Chariton Circuit Court. — Hon. Paul Van Osdol, Judge.

AFFIRMED.

Jno. D. Taylor for appellants.

(1) In construing a deed, the cardinal rule is to ascertain the intention of the grantor. Roberts v. Crume, 173 Mo. 579; Cox v. Jones, 229 Mo. 62. (2) The modern rule of construction is that all parts of the instrument must be examined from side to side, end to end, and by its four corners, considering the circumstances surrounding the grantor, taking his word in the sense indicated by the whole instrument, making each word and clause operative, if possible, reconciling each clause with the other without strained construction of words, or hairspun theories. Eckle v. Ryland, 256 Mo. 441; Bank v. Windes, 314 Mo. 206. The use of the words, "his heirs," at the beginning of the deed, and "his heirs" in the granting clause, read in connection with the entire deed, and considered in connection with the purpose of the deed, and other circumstances, clearly indicate that it was the purpose of the grantor to convey to John A. Triplett and the heirs of his body. Eckle v. Ryland, 256 Mo. 424; Cornelius v. Smith, 55 Mo. 528; Hamilton v. Pitcher, 53 Mo. 334. Such a conveyance as the one in evidence will only vest a life estate in the grantee, with remainder over to his children. 18 C.J. 326, sec. 317; Kinney v. Mathews, 69 Mo. 520.

Ray Crow and Percival Birch for respondent.

(1) The deed to "John A. Triplett and his heirs" conveyed the title in fee-simple to the grantee. McDowell v. Brown, 21 Mo. 60; Roberts v. Crume, 173 Mo. 579; Gannon v. Albright, 183 Mo. 248; Tygard v. Hartwell, 204 Mo. 208. The clause prohibiting the sale of the land conveyed was repugnant and void. 1 Washburn on Real Property (6 Ed.) sec. 143; McDowell v. Brown, 21 Mo. 60; Gannon v. Albright, 183 Mo. 252; Kessner v. Phillips, 189 Mo. 526; Elsea v. Smith, 273 Mo. 414; Ketcham v. Miller, 37 S.W. (2d) 637. (2) The deed did not convey an estate in fee-tail because words of procreation were lacking. 1 Washburn on Real Property (6 Ed.) sec. 199; 2 Blackstone Comm., p. 115; Tygard v. Hartwell, 204 Mo. 207. (3) A tenancy in common could not have been conveyed, even though the court should construe the word "heirs" to mean children, for there was no child in esse to take the fee. Kinney v. Mathews, 69 Mo. 525; Tygard v. Hartwell, 204 Mo. 206.

TIPTON, J.

This case comes to the writer on reassignment. It is an action to determine the title to real estate in Chariton County, Missouri. The following deed was introduced in evidence:

"THIS INDENTURE, made on the 1st day of May A.D. One Thousand Eight Hundred and Ninety, by and between John E.M. Triplett and Nancy Triplett, of Chariton County, Missouri, parties of the first part, and John A. Triplett and his heirs of the County of Chariton in the State of Missouri party of the second part:

"WITNESSETH, That the said parties of the first part, in consideration of the sum of Thirty-Five Hundred — DOLLARS to him paid by the said parties of the second part, the receipt of which is hereby acknowledged, doth by these presents GRANT, BARGAIN AND SELL, CONVEY AND CONFIRM, unto the said parties of the second part, his heirs and assigns, the following described lots, tracts, or parcels of land, lying, being and situate in the County of Chariton and State of Missouri, to-wit: ALL — (description omitted).

"To have and to hold the above expressed to him and his heirs the power to sell the above tracts being prohibited until his heirs are Twenty-one years of age.

"TO HAVE AND TO HOLD the premises aforesaid, with all and singular the right, privileges, purtenances and immunities thereto belonging or in anywise appertaining, unto the said parties of the second part, and unto his heirs and assigns, forever; the said John E.M. Triplett and Nancy Triplett hereby covenanting that they — lawfully seized of an indefeasible estate in fee in the premises herein conveyed, that they have good right to convey the same; that the said premises are free and clear of any incumbrances 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 parties of the second part, and unto — heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever.

"IN WITNESS WHEREOF, The said part — of the first part have hereunto set our hands and seals the day and year first above written.

"Signed, Sealed and Delivered in Presence of

                               "JOHN E.M. TRIPLETT, [SEAL.]
                               "NANCY TRIPLETT, [SEAL.]
                

"The said deed showed that it was duly acknowledged on the 21st day of August, 1890, and was filed for record and recorded in the office of the Recorder of Deeds of Chariton County, Missouri, on the 27th day of August, 1890."

There was no other evidence introduced in the case, but the following agreed statement of facts was used in lieu thereof:

"IT IS AGREED between the parties, plaintiff and defendants, that the title to the real estate involved in this litigation emanated from the United States Government more than ten years before the institution of this suit.

"It is agreed that John E.M. Triplett is the common source of title, and in introducing record evidence in this cause the deed from John E.M. Triplett and wife to John A. Triplett and his heirs, dated May 1st, 1890, need be the only deed introduced in evidence.

"That John A. Triplett has been in the peaceable, continuous possession of the property in question since the deed dated May 1, 1890, and has paid all taxes.

"It is agreed between the parties hereto and their respective attorneys that on the 1st day of May, 1890, John A. Triplett, the plaintiff herein, was single and unmarried, and that he had no heirs of his body at that time; that the conveyance made on said day from John E.M. Triplett and Nancy Triplett to John A. Triplett and his heirs, reciting a consideration of thirty-five hundred dollars ($3500), was made to him in the distribution of the estate of his father, John E.M. Triplett, and that the said John A. Triplett paid no cash amount to the said John E.M. Triplett or Nancy Triplett for said conveyance; that at said time, the defendant, Martin E. Triplett, was not in being, and that the defendant, Mabel Triplett, was not the wife of the said Martin E. Triplett; that Martin E. Triplett, the defendant, is the only child of John A. Triplett and is now over the age of twenty-one (21) years; that this agreed statement of facts shall be considered as evidence in the trial of this cause, and the things herein agreed upon shall be given the same force and effect as if the same had been introduced under oath."

The trial court entered a judgment decreeing to the respondent the fee simple title to the land conveyed by this deed. This cause was properly appealed to this court.

[1] It is well settled in this State that the rule to be observed in the construction of deeds, as well as wills, is to ascertain the intention of the grantor, and to give effect to such intention, unless it conflicts with some positive rule of law. It is necessary to take the deed as a whole in arriving at such intention and not to give any clause in the instrument undue preference. It is our duty in construing the deed to give it effect and to carry out the intention of its maker. We, therefore, look to the deed in this case to find the grantor's meaning and intention as therein expressed. [Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035; Welch v. Finley, 281 Mo. 684, 219 S.W. 897; McAlister v. Pritchard, 287 Mo. 494, 230 S.W. 66; Mary L. Long et al. v. St. Louis Union Trust Company, 332 Mo. 288, 57 S.W. (2d) 1071.]

It is the appellants' contention that by the deed the respondent took a life estate in the land conveyed, with remainder to the heirs of his body. The respondent contends that under the deed he took a fee simple title. We believe the contention of the respondent to be correct.

[2] The deed from John E.M. Triplett to the respondent and his heirs did not convey a fee-tail estate as contended by the appellants because the words of procreation were not used.

"It is requisite, in order to create such an estate, that, in addition to the word `heirs' there should be words of procreation which indicate the body from which these heirs are to proceed, or the person by whom begotten. If this is done, it may not be necessary to make use of the words `of the body,' if, by the description, it appears that they are to be the issue of a particular person. A general limitation to a man and the heirs of his body is sufficient, it being immaterial of whom begotten. Whether the limitation be to one and the heirs of his body begotten, or to such heirs to be begotten, is immaterial, for in the former case it would extend to embrace those already born." [1 Washburn on Real Property (6 Ed.) sec. 199.]

In Tygard v. Hartwell, 204 Mo. 200, l.c. 207, 102 S.W. 989, we said:

"Nor does the deed create an estate in fee tail, because words of inheritance are not used. Words of inheritance were as essential at common law in the creation of an estate in fee tail as they were in the creation of an estate in fee simple. The statute, Section 4590, Revised Statutes 1899, dispensing with the necessity of using the word `heirs,' or other words of inheritance, applies only to the creation of estates in fee simple. [Kinney v. Mathews, 69 Mo. 520.] Our statutes abolishing entails and the rule in Shelley's case, Sections 4592 and 4594, Revised Statutes 1899, refer to common law estates. Blackstone says: `As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feodal donation, the word body or some other words of procreation, are necessary to make it a fee tail, and ascertain to what heirs in particular the fee is limited. If,...