Whitsett v. Wamack

• Decision Date: 11 December 1900
• Parties: WHITSETT v. WAMACK et al., Appellants
• Court: Missouri Supreme Court

59 S.W. 961

159 Mo. 14

WHITSETT v. WAMACK et al., Appellants

Supreme Court of Missouri, First Division

December 11, 1900

Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.

Reversed and remanded.

McReynolds & Halliburton for appellants.

(1) The deed from Mrs. Wamack's brothers to her and her husband partitioning said land, did not convey title to them but simply defined the boundaries of her land, the title of which she acquired from her father. Dawson v. Lawrence, 42 Am. Dec. 210, and authorities cited in note thereto; Harrision v. Ray, 23 Am. State Rep. 57; Bumgardner v. Edwards, 85 Ind. 117; 17 Am. and Eng Ency. of Law, p. 663, n. 1; Dexter v. Billings (Pa.), 1 Cent. 210; Gullett v. Miller, (Ind.), 3 West 695. (2) The most that can be claimed by plaintiff of the deed to Mrs. Wamack and her husband in this case, is that it made him a trustee for his wife and gave him a beneficial interest for any sum he may have paid for difference in value (none paid in this case.) Weeks v. Haas, 39 Am. Dec. 39, and note; Davis v. Agnew (Tex.), 2 S.W. 376; Aycock v. Kimbrough (Tex.), 21 S.W. 71. (3) The deeds in partition created no new title. Each had precisely the same title which he or she previously had. Their joint possession was converted into a several possession. Dresher v. Allentown Water Co. (Penn.), 60 Am. Dec. 150; McBain v. McBain (Ohio), 86 Am. Dec. 478; Grisby v. Peak (Tex.), 2 Am. State Rep. 497; Dexter v. Billings (Pa.), 1 Cent. 210; Gullett v. Miller (Ind.), 3 West, 695; Hart v. Steedman, 98 Mo. 452. (4) Defendants are not and neither could their mother have been estopped to deny plaintiff's title to the land. Johnson v. Duer, 115 Mo. 366; Leete v. State Bank, 115 Mo. 204. (5) Mrs. Wamack had no power directly or indirectly to charge or dispose of her estate in any manner other than that provided by statute. Shaffer v. Kugler, 107 Mo. 58; Richardson v. De Giverville, 107 Mo. 422. (6) The deed to Mrs. Wamack and her husband J. G., being properly acknowledged and recorded, and showing that it was without money consideration, and made in partition of her deceased father's estate gave notice to plaintiff of its contents and was notice that J. G. Wamack had only a life estate in the land. Durette v. Briggs, 47 Mo. 356; Tydings v. Pitcher, 82 Mo. 379; Major v. Buckley, 57 Mo. 229; McClurg v. Phillips, 57 Mo. 214.

E. O. Brown and Geo. P. Whitsett for respondent.

(1) The deed to Frances R. and her husband, operated to vest in the latter as tenants by the entirety the legal title in fee to the premises thereby conveyed, the title vesting in them as by purchase, they having taken per tout, et non per my, and the survivor, James G. Wamack, took the whole. The rule contended for by the appellants that no new title was created thereby does not apply to deliberate conveyances of the parties by actual deeds as in the case at bar. Bank v. Wallace, 45 Ohio St. 152; Hersheiezer v. Florence, 39 Ohio St. 516; R. S. 1889, sec. 8844; Hall v. Stephens, 65 Mo. 676; Russell v. Russell, 122 Mo. 235; Garner v. Jones, 52 Mo. 68; Baker v. Lorillard, 4 N.Y. 257; Knapp on Partition, p. 476; Bompart v. Roderman, 24 Mo. 399; Eaton v. Tollmadge, 24 Wis. 222; McCleary v. McCorkle (Tenn.), 54 S.W. 53. (2) Formerly partition merely meant that one tenant in common should use the entire tract for a certain portion of time, and the other tenant in common for a like portion of time; consequently under such partition no new title passed, but under our statute, and the constructions placed thereon by this court, partition of land is a proceeding in which the title is necessarily involved and may be divested or vested, as the case may be. R. S. 1889, secs. 7136, 7145, 7148; Hart v. Steedman, 98 Mo. 456; Benoist v. Thomas, 121 Mo. 666; Forder v. Davis, 38 Mo. 107; Sutton v. Porter, 119 Mo. 100; Jones on Real Prop., secs. 1744-1799. (3) While a different rule may be recognized in other jurisdictions, in Missouri partition is a mode of acquiring and conferring title. In other words, a decree in partition insures to the acceptant the title of his co-heirs, whatever that may be. Manifestly then the same effect in conferring title would be accomplished by the parties themselves by means of mutual deeds.

OPINION

BRACE, P. J.

In the year 1859, one Reuben H. Scott died intestate seized in fee of the southeast quarter of section 34, and thirty-six acres of the northeast quarter of the southwest quarter of section 36 in township 28, range 32, in Jasper county, Missouri, leaving him surviving, three children, William M., Allen Thomas and Frances R., his only heirs at law. Afterwards, in the year 1878, the said Frances R. intermarried with the defendant J. G. Wamack. Afterwards, on the 7th day of February, 1879, the said William M., Allen Thomas and Frances R., made a voluntary partition of the real estate aforesaid so inherited by them from their father, by means of three deeds of that date, of one of which the following is a copy:

"This Indenture, made on the seventh day of February, A. D., one thousand eight hundred and seventy-nine, by and between W. M. Scott and Judy Scott, his wife, and A. F. Scott and M. E. Scott, his wife, heirs of Reuben H. Scott, deceased, of the county of Jasper and State of Missouri, parties of the first part; and Frances R. Wamack and J. G. Wamack her husband, of the county of Jasper, and State of Missouri, parties of the second part, Witnesseth, that the said parties of the first part, in consideration of the division of the estate of Reuben H. Scott, deceased, the division of which is hereby acknowledged, do by these presents, remise, release and forever quitclaim unto the said parties of the second part, the following described lots, tracts or parcels of land, lying, being and situate in the county of Jasper and State of Missouri, to-wit: One-third off of the east side of the southeast quarter of section thirty-four, township twenty-eight, range thirty-two, said east lot or parcel to contain fifty-three and one-third acres, more or less. Also twelve acres, more or less, off of the south side of a thirty-six acre tract described as follows: part of the northeast of the southwest quarter, section thirty-six, township twenty-eight, range thirty-two. To Have and To Hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging, unto the said parties of the second part, and their heirs and assigns, forever: so that neither the said parties of the first part, nor their heirs, nor any other person or persons for them or in their names or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and every one of them shall by these presents be excluded and forever barred. In Witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written."

The other two deeds are in precisely the same form, in one of which "Frances R. Wamack and J. G. Wamack her husband and Allen T. Scott and M. E. Scott his wife, heirs of Reuben H. Scott, deceased," are the parties of the first part, and "W. M. Scott and Judy Scott his wife" are the parties of the second part, and the land is described as "one-third off the west side of the southeast quarter of section thirty-four, township twenty-eight, range thirty-two; said west tract or lot to contain fifty-three and one-third acres, more or less. Also twelve acres, more or less, off of the north side of a thirty-six acre tract, described as follows: part of the northeast of southwest quarter, section thirty-six, township twenty-eight, range thirty-two."

In the other, "W. M. Scott and Judy Scott his wife and Frances R. Wamack and J. G. Wamack her husband heirs of Reuben H. Scott, deceased," are the parties of the first part and "Allen T. Scott and M. E. Scott his wife" are the parties of the second part, and the land is described as "one-third of the southeast quarter of section thirty-four, township twenty-eight, range thirty-two, said third to contain fifty-three and one-third acres, more or less, and situated between the tract of W. M. Scott on the west, and Frances R. Wamack's tract lying on the east. Also twelve acres more or less, of a thirty-six acre tract, described as follows: part of the northeast of the southwest quarter, section thirty-six, township twenty-eight, range thirty-two. Said twelve acre tract is lying and situated between the parcels of land belonging to Frances R. Wamack on the south, and W. M. Scott on the north."

These deeds were all severally acknowledged by the respective parties of the first part and duly recorded among the land records of said county in Book 47, pages 86 to 96, and thereupon each took possession, and thereafter continued to hold their respective shares in severalty. Afterwards, in the year 1883, the said Frances R. Wamack died, leaving her surviving, three minor children by her said husband, viz., Joseph W., Allen T., and Pearl M. Wamack, who are the other defendants in this suit, in which the premises in controversy are the land described in the first of these deeds, quitclaimed as aforesaid to "Frances R. Wamack and J. G. Wamack her husband."

Afterwards on the first of October, 1884, the said J. G. Wamack executed a deed of trust of that date conveying the premises in controversy to W. E. Brinkerhoff, trustee, to secure the payment of an indebtedness of $ 350 to Hannah C. Williams, which was duly foreclosed by sale, and the plaintiff Whitsett became the purchaser thereof, received the trustee's deed therefor, dated December 6, 1889, went into possession under the same, and afterwards instituted this suit in partition claiming in his petition that he is the owner of the undivided two-thirds...