Utter v. Sidman

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

70 S.W. 702

170 Mo. 284

UTTER et al. v. SIDMAN et al., Appellants

Supreme Court of Missouri, First Division

November 26, 1902

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

James Baker and Edw. J. White for appellants.

(1) To determine the estate conveyed the intention of the parties must be gathered from the language used in the whole instrument. Walton v. Drumtra, 152 Mo. 489. (2) Under the Missouri statute, sections 907 and 4590, and the language employed, the granting clause of this deed conveys the fee-simple title to the land described. Green v Sutton, 50 Mo. 192. A deed which creates in the grantee an absolute power of disposition to the land granted, conveys the fee of the tract. Green v. Sutton, supra; Jackson v Robbins, 16 Johns. 288; Tremmel v. Kleiboldt, 6 Mo.App. 549; English v. Beehle, 32 Mo. 186; Jecko v. Tausig, 45 Mo. 167; Fanning v Doan, 128 Mo. 323; Walton v. Drumtra, supra; Johnson v. Morton (Tex.), 67 S.W. 790; Ray v. Spears (Ky.), 64 S.W. 413; White v. Deadman (Tex.), 57 S.W. 870; Brien v. Robinson (Tenn.), 52 S.W. 802; Parker v. Cook, 159 Ill. 300. (3) The inconsistency in the language of the habendum clause, arising from the use of the word "assigns," which clearly contemplates a power of disposition and supports the granting clause, and the words of limitation, "bodily heirs," which would create a remainder and preclude the exercise of the power contemplated in the same clause of the deed, is, of itself, sufficient to give effect to the clear and unambiguous terms of the granting clause. (4) But since the granting clause conveys the fee, even if the habendum did clearly contain a limitation over, it would be void, as "any subsequent limitation, where the granting clause conveys the fee, is void." Green v. Sutton, 50 Mo. supra; Parker v. Cook, supra; Walton v. Drumtra, supra. (5) The words of limitation appearing in the habendum, being repugnant to both the granting clause and the warranty clause, should be entirely rejected. Major v. Bukley, 51 Mo. 232; Hunter v. Patterson, 142 Mo. 320; 3 Wash. Real Prop. (4 Am. Ed.), top p. 241, sec. 7; Tiedeman, Real Prop., sec. 844; 4 Kent's Com., sec. 5, p. 468; Coleman v. Clark, 80 Mo.App. 339; Donnon v. Printing Co., 70 Mo. 168.

White & McCammon for respondents.

(1) The words "bodily heirs," are synonymous with "heirs of the body," and when used in a deed create an estate tail, which by our statute is converted into a life estate in the grantee named, with remainder in fee to his or her children. Wagner's Statutes 1872, 1351, secs. 4 and 6; R. S. 1899, secs. 4592, 4594; Clarkson v. Clarkson, 125 Mo. 381; Clarkson v. Hatton, 143 Mo. 47; McGinnis v. McGinnis (Ky.), 29 S.W. 333; Wilmers v. Robinson (Ark.), 55 S.W. 950; Hunt v. Searcy, 167 Mo. 158. (2) Under the common law rule the premises, which includes the granting clause, effectuates the grant of the property described, while it is the office of the habendum to define and limit the estate granted. The premises defines the quality, extent and character of the property granted, and the habendum defines the estate which the grantee takes in that property. While under modern rulings the habendum is unnecessary to make a conveyance effectual and might be omitted altogether; nevertheless, when it is used to define the estate granted, it must be given effect. Thus: (a) When there is no limitation in the premises, and the habendum limits to the grantee and heirs of his body, the grantee will have life estate with remainder to his children. The limitation in the habendum prevails, not being repugnant to the grant. (b) Where there is a general limitation in the premises and a special limitation in the habendum, there is no repugnance, and the latter prevails. (c) A party not named in the grant may be ascertained from the habendum. New parties may be introduced in the habendum to take by way of remainder. 3 Wash. Real Prop. (5 Ed.), p. 466, secs. 60, 61, 62; Devlin on Deeds, secs. 216, 219, 220; Tiedeman on Real Property (2 Ed.), sec. 844; Bean v. Kenmuir, 86 Mo. 666; Bone v. Tyrrell, 113 Mo. 175; Davidson v. Manson, 146 Mo. 608; Rozier v. Graham, 146 Mo. 352; Hunter v. Patterson, 142 Mo. 310; Linville v. Greer, 165 Mo. 380; Montgomery v. Sturdevant, 41 Cal. 290; Basket v. Sellers (93 Ky. 2), 19 S.W. 9; Bowdine v. Arthur (91 Ky. 53), 14 S.W. 904; Carson v. Carson, 60 Ind. 334; Riggin v. Lowe, 92 Ind. 553; Blair v. Osborne, 84 N.C. 417; Downing v. Birney (Mich.), 70 N.W. 1006; Barrett v. Barrett (Cal.), 37 P. 1049; 9 Am. and Eng. Ency. Law (2 Ed.) p. 139. (3) A deed, in order to create in the grantee a power of disposition which would defeat a limitation over, must do so in express and definite terms. The term "assigns" after the words "to Frances A. Clark and her bodily heirs" is altogether insufficient for the purpose. Hunt v. Searcy, supra; Bean v. Kenmuir, supra; Davidson v. Manson, 146 Mo. 617; Reed v. Lane, 122 Mo. 311; Walton v. Drumtra, 152 Mo. 489; Hunter v. Patterson, supra.

OPINION

MARSHALL, J.

This is a proceeding under the Act of 1897 (Laws 1897, p. 74), being now section 650, Revised Statutes 1899, to have adjudicated the rights of the parties in respect to a certain tract of land, containing one and three-fourths acres, in the city of Springfield. The plaintiffs are the only children of Frances A. Leedy, who is now sixty-five 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 feet north of the southwest corner of the northwest quarter of the northwest quarter of section 13, township 29, range 22, thence north 135 feet, thence east 25 rods, thence south 135 feet, 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 anywise 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 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.

I.

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.]

II.

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., first, the granting clause uses the words 'grant, bargain and sell,' and grants, without limitation, an estate in fee simple; second, 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, third, 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...