Welch v. Harvey

• Decision Date: 15 March 1920
• Parties: ANABEL WELCH v. JAMES HARVEY et al.; CYRUS FINLEY et al., Appellants
• Court: Missouri Supreme Court

219 S.W. 897

281 Mo. 684

ANABEL WELCH v. JAMES HARVEY et al.; CYRUS FINLEY et al., Appellants

Supreme Court of Missouri

March 15, 1920

Appeal from Lincoln Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.

Reversed.

Sutton & Huston and J. W. Powell for appellants.

(1) Both the statute law and the decisions conclusively establish that this conveyance created an estate by the entirety in William Finley and Fannie Finley, his wife. Gibson v Zimmermann, 12 Mo. 386; Garner v. Jones, 52 Mo 68; Modrell v. Riddle, 82 Mo. 31; Edmondson v City of Moberly, 98 Mo. 523; Bains v. Bullock, 129 Mo. 117; Hume v. Hopkins, 140 Mo. 65; Wilson v. Frost, 186 Mo. 311; Moss v. Ardery, 260 Mo. 595; R. S. 1909, sec. 2878; Steifel Union Brewing Co. v. Saxy, 273 Mo. 171; Ashbaugh v. Ashbaugh, 273 Mo. 357. (2) Counsel insist that the intention to convey separate estates is shown by the use of the words "convey and sell" as used in the granting clause. We contend that it would be just as reasonable to contend that five separate estates were conveyed, had the scrivener used the words, "grant, bargain and sell, convey and confirm," as is commonly used now. Garner v. Jones, 52 Mo. 68. When the entire deed is taken into consideration, it is quite evident that the grantor did not intend that this expression should in any way affect the conveyance, but that the purpose of inserting this expression in the deed was to show his other heirs how much of this conveyance to William and his wife was an advancement, and for how much of the property conveyed, cash was paid. (3) It is no unusual thing for parents to convey property to their daughter and son-in-law and inject into the deed of conveyance such statements and expressions as appear in this deed, and still intend to convey an estate by the entirety. Garner v. Jones, 52 Mo. 68. (4) Whenever a doubt arises as to whether or not a conveyance to a man and wife creates an estate by the entirety or some other interest, the courts, whenever it is possible, construe the deed in such a manner as to convey an estate by the entirety. Wilson v. Frost, 186 Mo. 311; Garrett v. Wiltse, 252 Mo. 712; Ashbaugh v. Ashbaugh, 273 Mo. 358. (5) It is a well-established rule both at common law and under modern decisions that if two clauses of a deed are so repugnant that they cannot stand together, the first clause will be sustained and the latter rejected. Webb v. Webb, 29 Ala. 588; Petty v. Boothe, 19 Ala. 633; Gould v. Womack, 2 Ala. 83; Tubbs v. Gatewood, 26 Ark. 128; Doe v. Porter, 3 Ark. 18; Havens v. Dale, 18 Cal. 359; Daniel v. Veal, 32 Ga. 589; Cutler v. Tufts, 3 Pick 272; Blackwell v. Blackwell, 124 N.C. 269; Pike v. Munroe, 36 Me. 309. And whatever is expressly granted cannot be diminished by subsequent restrictions. Pike v. Munroe, 36 Me. 309. And subsequent clauses of doubtful import will not be so construed as to contradict preceding clauses. Perry v. Boothe, 19 Ala. 633. And doubtful words inserted after words of a grant will not qualify a conveyance. Ex Parte Durfee, 14 R. I. 47; Miller v. Tunica Co., 67 Miss. 651. It is also very generally held that even the habendum clause of a deed, though it may materially restrain, lessen, enlarge, explain, vary or qualify, may not contradict or be repugnant to the estate granted by the granting clause of the deed. 2 Blackstone's Commentaries, 298; Haffner v. Irwin, 20 N.C. 433; Mowry v. Bradley, 11 R. I. 370; Donnan v. Intelligencer etc. Co., 70 Mo. 174; Halifax Cong Soc. v. Stark, 34 Vt. 243; Edwards v. Beall, 75 Ind. 401; Adams v. Dunklee, 19 Vt. 382; Welch v. Welch, 183 Ill. 257; Green v. Sutton, 50 Mo. 192.

Avery & Killam for respondent.

(1) Fannie having preceded William in death, the 50 acres belonged to William absolutely, and there is no estate in entirety, in either the one or the other, but the collateral heirs of William are entitled to the 50 acres because of Fannie's death before his, and the 200 acres that was given to Fannie belonged absolutely to Fannie, and under the statute he, having outlived Fannie, owned one-half and his collateral heirs are entitled to that one-half, and the collateral heirs of Fannie are entitled to the remaining one-half. (2) Mr. and Mrs. Reid owned the land. Mrs. Finley was the daughter. The mother and father wanted to convey this land to her, that is, 200 acres of it. There was a tract of 250 acres. The son-in-law was willing to buy the 50 acres, the most eastern part of the 250 acre tract. He did buy it and he paid an adequate consideration $ 800. Then they wanted to give to her, Fannie, not William, 200 acres of land. The Reids conveyed the whole 250 acre tract, conveyed all of the 250 acres to Fannie and William, but they conveyed it in separate tracts; they conveyed 50 acres to William, which he bought, and they gave 200 acres to their daughter, Fannie. Buxton v. Kroeger, 219 Mo. 221. (3) It is a cardinal rule for the interpretation of contracts, that the intention of the parties shall be effectuated. Roseberry v. Benevolent Assn., 142 Mo. 552; Arnett v. Williams, 226 Mo. 109; St. Louis v. Railroad, 228 Mo. 712; Walsh v. Woodmen, 148 Mo.App. 179; Webb v. Ins. Co., 134 Mo.App. 576. The court will not give a contract such a construction as will permit one party to secure an unreasonable advantage over the other party unless compelled to do so by the language of the contract. Lead Co. v. Ins. Co., 162 Mo.App. 332.

RAGLAND, C. Brown and Small, CC., concur. Williamson, Blair and Goode, JJ., dissent, and express their views in an opinion by Williamson, J.

OPINION

In Banc

RAGLAND C.

This suit was instituted in the Circuit Court of Lincoln County by the plaintiff as one of the collateral heirs of Fannie E. Finley, deceased, against the remaining heirs of said deceased and the collateral heirs of William Finley, deceased, for the partition of certain lands in said county. The defendant heirs of Fannie E. Finley filed no answer; the heirs of William Finley answered, denying that the plaintiff and their codefendants, heirs of Fannie E. Finley, had any right, title or interest in the lands sought to be partitioned, claiming that they as heirs of William Finley were the sole owners thereof in fee simple, and praying the court to so adjudge.

The facts are brief. William Finley and Fannie E. Finley were husband and wife on the 28th day of August, 1867, and continued so to be until the death of Fannie, which occurred about the year 1909; William died January, 1916. They left no descendants. Appellants are the collateral heirs of William, and respondent and the remaining defendants are the collateral heirs of Fannie. Fannie E. Finley was a daughter of James and Lucy Reid, who on the 28th day of August, 1867, executed the following deed:

"Know ye all persons whom a knowledge of this transaction may concern that we James Reid Sen. and Lucy, his wife, of the County of Lincoln and State of Missouri, do by these presents for and in consideration of the regard and affection we have for our daughter Fannie E. Finley and of the payment of eight hundred dollars lawful money of the United States well and truly paid, by William Finley of the County of Lincoln and State of Missouri, the receipt of which is hereby acknowledged hereby convey and sell to said Fannie & William the following described tract of land containing two hundred and fifty acres eighty-five acres described as the land we bought of the widow and heirs of James Downing deceased the remaining one hundred and sixty-five acres described as follows. Begin at a stone corner of D. H. Whitesides. Then with the northern line of said Whitesides south sixty-eight degrees west sixteen chains and twenty-five links to corner in the spring branch. Then north twenty-one and half degrees west with the northeast line of the Downing tract of land twenty-seven chains and sixty-five links to the northeast corner of said land on the line of S. Weeks. Then with said line north sixty-eight degrees east thirty-one chains and twenty-five links to corner of said Weeks. Then north twenty-one and a half degrees west one chain and eighty links to a stone corner of James Willson. Then north sixty-eight degrees east fifteen chains and thirty links and set a stone for corner from which a white oak twelve inches bears south forty-nine degrees east twenty-nine links distant. Then south twenty-one and a half degrees east forty-seven chains and set a stone for corner from which a white oak twenty inches bears north ten and a half degrees east twenty-two links distant. Then south eighty and a half degrees west ten chains and fifty-nine links to a corner of D. H. Whitesides with a buckeye bearing tree. Then north seventy-nine degrees west twenty-three chains and sixty-eight links and set a stone from which a white oak eighteen inches bears south eighty degrees east thirty links. Then north twenty-one and a half degrees west two chains and fifty-five links to the place of beginning containing in all two hundred and fifty acres most eastern fifty acres is the land sold to William Finley the other two hundred acres we give to Fannie reserving to ourselves the right of way through said tract of land where said way may be least prejudicial to the same to a tract of we own and joining to and east of it all of which land is in and part of Survey eighteen hundred and thirteen or as some number it eighteen hundred and nineteen a grant of four thousand arpens to Peter Jamin situate in Township No. fifty-one and range one east and one west to the said Fannie and William with all and singular the appurtenances to the same belonging free and clear of all legal incumbrances whatsoever. In Testimony of which we hereunto set our hands and affix our seals this twenty-eighth day of August eighteen hundred and sixty-seven.

"James...