Tygard v. Hartwell

• Decision Date: 29 May 1907
• Parties: TYGARD, Executor, v. HARTWELL, Appellant
• Court: Missouri Supreme Court

102 S.W. 989

204 Mo. 200

TYGARD, Executor, v. HARTWELL, Appellant

Supreme Court of Missouri, First Division

May 29, 1907

Appeal from Bates Circuit Court. -- Hon. W. W. Graves, Judge.

Affirmed.

P. H Holcomb for appellant.

(1) The deed made June 5, 1857, is to be construed in the light of the statutes of 1855, chapter 32, section 5, and similar statutes down to the present time. R. S. 1899, sec. 4592. Appellant contends that the words "children and assigns," used in the deed, are words of procreation intended to be used in that sense, and that the statutes above cited would vest a life estate only in James F. White remainder in fee to his children. Kinney v. Matthews, 69 Mo. 520; Bone v. Tyrrell, 113 Mo. 175; Reed v. Lane, 122 Mo. 314; Hunter v. Patterson, 142 Mo. 310; Clarkson v. Clarkson, 125 Mo. 381; Rawles v. Johns, 32 S.E. 451; Mason v. Ammon, 117 Pa. St. 127. Estates tail, how created. Farrar v. Christy, 24 Mo. 468. (2) The White deed uses the word "children" instead of the word "heirs," and it is evident from reading the whole deed that only a life estate was vested in James F., the father, remainder in fee to the children, or at best the children were to have an equal interest with him in fee. The whole deed must be construed together, and so construing it it is evident that it was intended that the father should have a less estate than a fee, clearly only a life estate. McCullock v. Holmes, 111 Mo. 445; Kinney v. Mathews, 69 Mo. 520; Waddell v. Waddell, 99 Mo. 338; Fanning v. Doan, 128 Mo. 323. If from the whole deed it is apparent that there was an intention to pass a less estate than a fee, such intention must govern. Davidson v. Manson, 146 Mo. 608; McCullock v. Holmes, 111 Mo. 448; Chew v. Kellar, 100 Mo. 362; Hunter v. Patterson, 142 Mo. 310; Lewis v. Pitman, 101 Mo. 281; Mercier v. Land Co., 72 Mo. 494. The predominating idea in the White deed appears to have been the children of James F. White. Then the deed should be so construed as to vest an interest in them which courts will protect. Long v. Timms, 107 Mo. 519; Ringquist v. Young, 112 Mo. 25. (3) But if this deed cannot be construed as creating an estate tail, there certainly cannot be the least difficulty in construing it to be a deed to James F. White and his two children, making all three to be tenants in common of an equal fee in the land. The deed, in its essential clauses, is to him and his children and their assigns. In Rines v. Mansfield, 96 Mo. 394, the conveyance was not to children and their assigns, but to assigns; and this distinction was carefully noted by Justice Norton on page 399; and, further, in the habendum clause, it was "unto said E., her heirs and assigns forever." Not so in this White deed. The distinction is clear. Fanning v. Doan, 128 Mo. 323; Waddell v. Waddell, 99 Mo. 338; Ringquist v. Young, 112 Mo. 25.

Francisco & Clark for respondent.

(1) We maintain that this deed does not come within the provisions of section 5 of chapter 32, Revised Statutes 1855 (R. S. 1899, sec. 4592) as is contended by appellant, and that it falls within the provisions of section 2 of the same chapter (R. S. 1899, sec. 4590) and must be construed in accordance therewith. This section has come down to us from 1835 unchanged and is a landmark among our laws of construction. Under its provision the term "heirs," or other words of inheritance, are no longer necessary to create a fee simple title, and every conveyance must pass all the estate of the grantor unless the intent to pass a less estate shall appear by express terms or be necessarily implied in the terms of the grant. We maintain that there are no "express terms" in this deed that indicate an intention to pass a limited estate, and that there is nothing in the deed from which such an intention can be "necessarily implied." And, hence, that if this statute (sec. 4590) is to be given effect at all, this deed must be construed to pass the fee simple title. McCullock v. Haines, 111 Mo. 445. (2) It is apparent from an examination of the deed that the word "children" is used through mistake of the scrivener and that the word "heirs" was intended, and this intention of the parties should be given effect by this court. Rines v. Mansfield, 96 Mo. 394; Green v. Sutton, 50 Mo. 192; Waddell v. Waddell, 99 Mo. 345; Martin v. Jones, 62 Ohio St. 525. (3) The word "heirs" is not necessary to a fee simple estate. The presence of the word adds nothing and its absence detracts nothing in this direction. Davidson v. Manson, 146 Mo. 608; Bean v. Kenmuir, 86 Mo. 671; Rines v. Mansfield, 96 Mo. 399. (4) This deed does not contain apt words for the creation of an estate tail. The words "heirs of the body" or their equivalent are and always have been essential. And they are used in every conveyance cited by appellant, or that can be found in this State, where a life estate has been sustained, except in a few cases where the grant is expressed to be for the "life" or for the "natural life" of the immediate grantee. Bone v. Tyrrell, 113 Mo. 175; Hunter v. Paterson, 142 Mo. l. c. 313; McCullock v. Holmes, 111 Mo. 447; Ringquist v. Young, 112 Mo. 30; Reed v. Lane, 122 Mo. 313; Utter v. Sidman, 170 Mo. 284; Clarkson v. Clarkson, 125 Mo. 381; Davidson v. Manson, 146 Mo. 608; Fanning v. Doan, 128 Mo. 323.

VALLIANT, P. J. Graves, J., not sitting.

OPINION

VALLIANT, P. J.

Plaintiff sues to quiet title to certain land in Bates county to-wit: East one-half of southeast one-fourth of section 13, township 40, range 30, and southwest one-fourth of southwest one-fourth of section 18, township 40, range 29, 120 acres. Defendant disclaims any title to the north one-half of the east one-half of the southeast one-fourth of section 13, but does claim fee simple title to an undivided half of the rest of the land, subject to the life estate of James F. White, now living.

Martin White is the common source of title; by deed executed June 5, 1857, he conveyed a title to the land to James F. White and this plaintiff now holds by mesne conveyances that title, whatever it may be.

James F. White had two children at the date of the deed, one of whom, Martin S. White, has conveyed whatever interest he had in the land to the defendant. That interest is claimed to be an undivided half of the remainder in fee on the termination of what is claimed to be the estate for the life of James F. White.

The whole controversy is concentrated in the construction to be given to the above-mentioned deed from Martin White to James F. White; on the part of the plaintiff it is contended that the effect of that deed was to convey to James F. White a fee simple title; on the part of the defendant the contention is that it created what by the common law and the Statute de donis would be a fee tail, which by virtue of our statute results in a life estate to James F. White with remainder in fee to his children, or if not that, then the deed created a tenancy in common in fee to James F. White and his children. The following is a copy of the deed in question:

"This indenture made and entered into the fifth day of June, eighteen hundred and fifty-seven, between Martin White of the first part and James F. White of the second part, both of Bates county, Missouri, witnesseth:

"That the party of the first part has this day bargained and sold unto the party of the second part, and by these presents do bargain and sell unto the party of the second part, his children and assigns forever all of my interest in and to the following described lot or parcel of land situated, lying and being in Bates county, Missouri, as follows, to-wit: [describing the land in suit with other land], containing in all four hundred and forty acres, and have received in hand paid the sum of one thousand dollars, the receipt whereof is hereby acknowledged by the party of the first part do hereby sell and convey unto James F. White, party of the second part, for the sum aforesaid, all my right and interest and title with all and singular thereunto belonging or any wise appertaining to the aforesaid land, and that the party of the first part have good right to sell and convey his title in the above described land unto the aforesaid parties of the second parts his children and their assigns forever and that the said Martin White, party of the first part will warrant and forever defend against the claims of himself, his heirs and assigns forever, and against the lawful claims of any and all persons whomsoever unto the foregoing described land unto James F. White, his children and their assigns forever. In testimony whereof, I have hereunto set my name and fixed my seal the day and date above written.

"Martin White (seal.)"

The trial court construed the deed to be a conveyance of the land in fee simple to James F. White and accordingly rendered judgment that the title in fee was vested in the plaintiff for the use of the estate of Branham Hill, that Martin S. White, the defendant's grantor, took no title under the deed and therefore defendant had no interest in the land. From that judgment the defendant appealed.

The deed is the product of a mind of little education in the science of conveyancing; its meaning is not clear. In construing a deed...