Tucker v. Holder

• Decision Date: 12 December 1949
• Docket Number: No. 41250,No. 2,41250,2
• Citation: 359 Mo. 1039,225 S.W.2d 123
• Parties: TUCKER v. HOLDER et al. (FARMER et al., Intervenors)
• Court: Missouri Supreme Court

Page 123

225 S.W.2d 123

359 Mo. 1039

TUCKER v. HOLDER et al. (FARMER et al., Intervenors).

No. 41250.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1949.

E. A. Farris, Richmond, O. J. Adams, Kingston, for appellants.

Lawson, Hale & Coleberd, Liberty, for intervenors.

Stephen J. Millett, Kingston, Wilder Lintner, Kitt & Lintner, Chillicothe, for respondent.

BARRETT, Commissioner.

In 1946 Nellie C. Tucker, then sixty-five years old and the daughter of James H. and Mary E. Hendrix, as one of 'the heirs of the bodies of grantees by their marriage' under a warranty deed executed in 1923 instituted this action to quiet title for recovery of possession and damages and to partition 130 acres of land in Ray County. The defendants, Henry and Stella Holder, have been in possession of the farm since 1942 through intermediate conveyances from James and Mary Hendrix beginning in 1924. F. D. Garner is the trustee and Dana M. Clark is the beneficiary of a deed of trust executed by the Holders in 1944. The defendant, Effie Hendrix, is Mrs. Tucker's sister-in-law and as the wife of Mrs. Tucker's deceased brother, Martin L. Hendrix, is the inheritor of a one-fourth interest in the farm as the other 'heirs of the bodies of grantees by their marriage.' The six sons and daughters of John Farmer, who was the intervening possessor and the Holder's vendor, intervened in the suit and sought to assert and maintain a fee simple title in their father and his grantees, the Holders. Effie Hendrix deeded her interest in the land to the Holders and filed a disclaimer of any interest in it. The trial court found that Mrs. Tucker was and had been the owner in fee of a three-fourths interest in the land since the death of her father and that the Holders as the grantees of Effie Hendrix were the owners of a one-fourth interest and, accordingly, the court found that Mrs. Tucker was entitled to three-fourths possession and three-fourths of the rents and profits from September 27, 1946, and to partition. The Holders and the intervenors appeal from the judgment.

The controversy arose in these facts and circumstances: In 1923 Mary E. Hendrix owned, as her sole and separate property, the 130 acre farm near Georgeville in Ray County, subject to a deed of trust which she and her husband had executed in 1921 to secure a note in the sum of $4,500.00, payable to the Bankers Life Insurance Company of Nebraska. On the 13th day of June, 1923, Mrs. Hendrix and her husband and their son, Martin L. Hendrix, and his wife, Effie, of near Cowgill in Caldwell County, and perhaps Mrs. Tucker, went to the office of a lawyer in Chillicothe and Mrs. Hendrix deeded, for the consideration of one dollar, her farm to her son, Martin. On the same day, in consideration of one dollar, the son, Martin L. Hendrix, and his wife, Effie, by warranty deed reconveyed the land to 'James H. Hendrix and Mary E. Hendrix husband and wife.' The original deed is a printed form, 'general warranty deed.' The scrivener filled in all the blank spaces and in the granting and habendum clauses inserted the words 'the heirs of the bodies of grantees by their marriage.' On April 16, 1924, in consideration of $11,700.00, James and Mary Hendrix by general warranty deed, including covenants of fee simple ownership, conveyed the land to John Farmer. The deed recited that 'The above real estate is deeded subject to a deed of trust for $4,500.00 held by the Bankers Life of Nebraska, and which second party assumes and agrees to pay.' Mr. Farmer paid the full consideration of $11,700.00 which included the $4,500.00 deed of trust. The deed of trust was released in April 1925. In February 1930, for a recited consideration of $9,800.00, Farmer and his wife again reconveyed the land to James H. and Mary E. Hendrix by warranty deed and on the same day Mr. and Mrs. Hendrix executed a deed of trust, to secure $7,331.84, in which Farmer was the beneficiary. On January 22, 1931, for the recited consideration of $7,000.00, Mr. and Mrs. Hendrix, by warranty deed reconveyed the land to Farmer and in March 1942 Farmer, in consideration of $2,000.00, conveyed the land by warranty deed to Henry and Stella Holder.

All the witnesses testified that by the time the land was conveyed to the Holders it had been 'farmed to death,' the soil had been exhausted, the fences were all down and the house and barn had deteriorated to the point that it had no rental value as a farm. The Holders have improved the buildings, rebuilt the fences and now have the farm in grass and it again has a rental value. The Holders discovered the condition of their title in 1946 when they were about to sell the farm for $6,500.00. Mrs. Tucker became aware of her interest in the land when a friend of Mr. Holder's asked her to sign a quitclaim deed, probably for $200.00. Mrs. Tucker's mother, Mrs. Hendrix, died in 1937 and her father, James E. Hendrix, died in 1940.

The Holders and the Farmers claim that the conveyances in 1923 from Mrs. Hendrix to her son Martin and from her son to Mr. and Mrs. Hendrix were for the sole purpose of creating a tenancy by the entirety in them. They offered to prove by Effie Hendrix that that was the sole purpose of the transfers. They claim that everyone who dealt with the land did so on the assumption that James H. and Mary E. Hendrix had and conveyed a fee simple title to Farmer and that Farmer likewise conveyed a fee simple title to the Holders. They claim that all the parties, including Mrs. Tucker, by her silence, have acquiesced in that interpretation of the conveyances and that Mrs. Tucker is now estopped to assert otherwise. But, in the eye of the law, the words 'the heirs of the bodies of grantees by their marriage' have acquired a definite meaning and that meaning must prevail unless a contrary intention and meaning can be found in the instrument. Owen v. Trail, 302 Mo. 292, 258 S.W. 699. The conveyance to James H. and Mary E. Hendrix and 'the heirs of the bodies of grantees by their marriage' created a life estate in the grantees and a remainder in fee in their heirs determinative upon the death of the surviving husband in Sec.940, Brown v. Bibb, 356 Mo. 148, 201 S.W.2d 370; Kane v. Roath, 310 Mo. 684, 276 S.W. 39, and there is no room for the application of auxiliary rules of construction or the admission of extrinsic evidence. Williams v. Reid, Mo.Sup., 37 S.W.2d 537. The deed, executed in June 1923, has been upon the records since October 1923 and all subsequent purchasers are chargeable with notice of its limitations. McConald v. Quick, 139 Mo. 484, 498, 41 S.W. 208. Mrs. Tucker says that she had no knowledge of her interest in the property until in 1946 and her mere silence could not estop her from asserting that interest. Prouse v. Schmidt, Mo.Sup., 156 S.W.2d 919; Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387, 171 S.W.2d 69. It necessarily follows that the trial court correctly and properly defined the interests and obligations of the parties, Jelly v. Lamar, 242 Mo. 44, 145 S.W. 799; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64 and the meritorious question is whether the Holders are entitled, by reason of Mr. Farmer's satisfying the $4,500.00 note and deed of trust executed by Mr. and Mrs. Hendrix, to be substituted or subrogated to any right or interest he may have acquired by reason of the payment. Krebs v. Bezler, 338 Mo. 365, 89 S.W.2d 935, 103 A.L.R. 1177; annotation 99 Am.St.Rep. 474.

When Mr. Farmer purchased the land from Mr. and Mrs. Hendrix in 1924 it was stipulated in his warranty deed that he assumed and agreed...