Utter v. Sidman

• Decision Date: 26 November 1902
• Citation: 170 Mo. 284,70 S.W. 702
• Parties: UTTER et al. v. SIDMAN et al.
• Court: Missouri Supreme Court

70 S.W. 702

170 Mo. 284

UTTER et al. v. SIDMAN et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

DEEDS—CONSTRUCTION—ACTIONS TO QUIET TITLE —STATUTES—CONSTRUCTION—JUDGMENT —QUESTIONS ON APPEAL.

1. Acts 1897, p. 74 (Rev. St. 1899, § 650), providing that any person claiming title to real

property may institute an action against any person claiming any interest therein to determine the interests of the parties, authorizes the children of the grantee in a deed conveying land to the grantee "and her bodily heirs and assigns forever" to institute a proceeding against purchasers from the grantee in the deed claiming a fee in the premises for an adjudication of the rights of the parties in the land.

2. A deed providing that the grantors "granted, bargained, and sold, and * * *, do grant, bargain, sell, and convey," to the grantee described, lands, to have and to hold the premises unto the grantee "and her bodily heirs and assigns, forever," and containing a covenant with the grantee, "her heirs and assigns," to defend the title against the claim of every person, conveys to the grantee a life estate, with a remainder in fee to her children, though Rev. St. 1899, § 4590, provides that every conveyance shall pass all the interest of the grantor unless a different intent expressly appears or is necessarily implied.

3. A judgment, in an action by the children of a grantee in a deed conveying land to the grantee and her bodily heirs against purchasers from the grantee claiming a fee in the premises, which adjudges that the grantee has only a life estate, and that the remainder in fee is in her children, is not erroneous as to the purchasers for failing to determine whether the remainder is vested or contingent.

4. The purchasers cannot complain that the decree fails to find whether the grantee has reached such an age that the possibility of further issue is extinct.

Appeal from circuit court, Greene county; Jas. T. Neville, Judge.

Action by Lulu Utter and others against Rebecca Sidman and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Jas. Baker and Edw. J. White, for appellants. White & McCammon, for respondents.

MARSHALL, J.

This is a proceeding under the act of 1897 (Acts 1897, p. 74), being now section 650, Rev. St. 1899, to have adjudicated the rights of the parties in respect to a certain tract of land, containing 1¾ acres, in the city of Springfield. The plaintiffs are the only children of Frances A. Leedy, who is now 65 years of age, and alleged to be beyond the possibility of having other issue of her body, and the defendants are in possession of the land, claiming title from Mrs. Leedy by a deed which purported and attempted to convey the fee. The case calls for the construction of a deed to the property, which is as follows: "Know all men by these presents, that I, James A. McCullah, and I. A. McCullah, his wife, of the county of Stone, in the state of Missouri, have this day, for and in consideration of the sum of three thousand dollars, to the said James A. McCullah in hand paid by Frances A. Clark, of the county of Polk, in the state of Missouri, granted, bargained, and sold, and by these presents do grant, bargain, sell, and convey, unto the said Frances A. Clark, the following described tracts or parcels of land, situated in the county of Greene, in the state of Missouri, that is to say: Beginning at a point 607 ft. north of the S. W. cor. of the N. W. quar. of the N. W. quar. of Sec. 13, Twp. 29, R. 22, thence north 135 ft., thence east 25 rods, thence south 135 ft., thence west to the place of beginning; containing one acre and three-fourths of an acre, more or less. To have and to hold the premises hereby conveyed, with all the rights, privileges, and appurtenances thereto belonging or in any wise appertaining, unto the said Frances A. Clark and her bodily heirs and assigns, forever; I, the said James A. McCullah, hereby covenanting to and with the said Frances A. Clark, her heirs and assigns, for herself, her heirs, executors, and administrators, to warrant and defend the title of the premises hereby conveyed against the claim of every person whatsoever. In testimony whereof we have hereunto subscribed our names and affixed our seals this 28th day of February, 1873. James A. McCullah. [Seal.] I. A. McCullah. [Seal.]" The petition set out the deed and the facts here stated, and asked that the court ascertain and determine the estate, title, and interest of each of the parties, and decree to each his interest therein. The defendants demurred generally. The court overruled the demurrer. The defendants refused to plead further. Judgment was rendered decreeing to defendant Rebecca Sidman a life estate in the premises, and to the plaintiffs, as tenants in common, the remainder in fee simple. From this judgment the defendants appealed.

1. This action is maintainable under the act of 1897, without regard to the nature of the estate or interest claimed by the plaintiffs, and without regard to whether that interest be legal or equitable, certain or contingent, present or in reversion or in remainder, or whether the plaintiffs are in possession or not, or whether the plaintiffs are entitled presently to possession or not. Such is the object and the effect of the statute. Meriwether v. Love, 167 Mo. 514, 67 S. W. 250.

2. The defendants pointedly state their position as follows: "The different parts of the deed, as set out in the petition, show the following inconsistent clauses; i. e.: (1) The granting clause uses words of "grant, bargain, and sell," and grants, without limitation, an estate in fee simple; (2) the habendum clause, while apparently attempting to limit the estate in fee granted by the granting clause by the use of the words "bodily heirs," also defines the estate as one to be held by the grantee and her "assigns"; and (3) the warranty clause warrants the title in the said grantee, "her heirs and assigns, for herself, her heirs, executors, and administrators," "against the claim of every person whatsoever," thereby covenanting to defend the fee-simple estate granted in the granting clause to the grantee. The defendants demurred to the amended petition, and in the argument thereof claimed that the granting clause, under the statute, conveyed the fee-simple estate; that the attempted ambiguous limitation in the habendum clause was void, because inconsistent with the granting clause; that there could be no limitation after a fee; that the apparent limitation was inconsistent with the absolute power of disposition recognized in the same clause where the words of limitation were used; and that the warranty clause supported the granting clause, and was absolutely inconsistent with the habendum, in covenanting to defend, in the grantee and her heirs and assigns, the unlimited estate granted in the premises. On the other hand, the contention of the plaintiffs is that there is no repugnance between the several clauses of the deed; that the granting clause and the habendum clause can be construed together, and made to harmonize, by construing the granting clause to convey only a life estate to Mrs. Clark, and the habendum clause as conveying a remainder in fee to her bodily heirs; that the intention must be "gathered from the four corners of the instrument," and that while, in cases of necessary repugnance between the premises and the habendum in a deed, the habendum must give way, still the habendum may lessen, enlarge, explain, or qualify the estate granted in the premises; that, while the habendum is no longer essential, still when employed it may be looked to in order to ascertain the intention of the grantor; that the term "assigns," employed in the deed, may as properly be construed to mean the assigns of Mrs. Clark's bodily heirs as it may be to mean Mrs. Clark's assigns, but that in no event can the use of that term define or enlarge the estate granted to Mrs. Clark. Per contra, the defendants reply by saying that the term "her bodily heirs" is inconsistent with three-fourths of the other clauses in the deed, and, as the granting clause conveys the property to Mrs. Clark, and as the habendum clause is to "assigns," and as the warranty clause also embraces "assigns," it must follow that Mrs. Clark took a fee simple, and the term "her bodily heirs" must give way. Devlin on Deeds (2d Ed. § 214) thus states the rule: "Where proper words of limitation are employed in the granting clause, there is no benefit to be obtained by the habendum. Where there is a repugnance between the words expressing the grant and the habendum concerning the estate the grantee is to take, the rule governing the construction of all contracts will be applied, and effect will be given to both clauses, if possible. That where there is a definite limitation in the words of the grant, and there is a conflict between them and the habendum, the latter must yield. If it appears from the whole instrument that it was intended by the habendum clause to restrict or enlarge the estate conveyed by the words of the grant, the habendum clause will prevail." Lord Coke contends that the habendum could enlarge, but not abridge, the estate granted by the granting clause. Coke, Litt. 299a. In Mississippi, Pennsylvania, and Canada it is held that a fee granted in the premises cannot be cut down by the habendum to a life estate. Robinson v. Payne, 58 Miss. 690; Moss v. Sheldon, 3 Watts & S. 160; Berridge v. Glassey, 112 Pa. 442, 3 Atl. 583, 56 Am. Rep. 322; Owston v. Williams, 16 U. C. Q. B. 405. It has also been held that where, by the premises, a fee is granted to one person, and by the habendum the fee is granted to a different person, the habendum is void. Hafner v. Irwin, 20 N. C. 570, 34 Am. Dec. 390. But it has also been held that where, by the habendum, the grant to a person different from the person named in the premises was not immediate, but was by way of remainder, there was no...