Willis v. Robinson

• Decision Date: 09 February 1922
• Parties: JOHN D. WILLIS et al., Appellants, v. LESLEY P. ROBINSON et al. JOHN D. WILLIS et al., Appellants, v. WILLIAM A. ALLEN et al. JOHN D. WILLIS et al., Appellants, v. COLUMBUS D. THOMPSON et al
• Court: Missouri Supreme Court

237 S.W. 1030

291 Mo. 650

JOHN D. WILLIS et al., Appellants, v. LESLEY P. ROBINSON et al.

JOHN D. WILLIS et al., Appellants, v. WILLIAM A. ALLEN et al.

JOHN D. WILLIS et al., Appellants, v. COLUMBUS D. THOMPSON et al

Supreme Court of Missouri

February 9, 1922

Appeal from Grundy Circuit Court. -- Hon. L. B. Woods, Judge.

Reversed and remanded (with directions).

Platt Hubbell and George H. Hubbell for appellants.

(1) Henry Willis and William T. Willis were each entitled to one-half of the life estate, and each of their children surviving them is entitled to an equal part of the share of their ancestor per stirpes. 18 C. J. 329; Treadwell v Bulkley, 4 Am. Dec. 227; Charles v. White, 214 Mo. 196; Long v. McDougald's Admr., 23 Ala. 413; Smith v. Alderson, 116 Va. 986. (2) The granting clause of this deed conveys a fee simple title, except for the modification contained in the subsequent paragraphs of the deed. Waldemeyer v. Loebig, 222 Mo. 552; 4 Words & Phrases, p. 3157 (1st Series); 2 Words & Phrases, p. 779 (2nd Series); R. S. 1919, sec. 2180. "It is familiar doctrine that the construction of deeds must be upon the entire instrument, with the view to give, if possible meaning and effect to each and every part of it. Bean v Kenmuir, 86 Mo. 669; 18 C. J. 252, 260; Tesson v. Newman, 62 Mo. 202; Utter v. Sidman, 170 Mo. 294, 300; McCullock v. Holmes, 111 Mo. 447; R. S. 1919, sec. 2180. Applicable provisions of Missouri statutes: R. S. 1909, pp. 1027, 1028, 1029; R. S. 1919, secs. 2265, 2269, 2271, 2273; R. S. 1855, p. 355 et seq.; R. S. 1865, p. 442. (3) Grammar and punctuation have little, if anything, to do with the interpretation of any deed. Martindale on Conveyancing, pp. 81, 82. "The first words in a deed" have no more weight than the middle words or the last words, or any other words or parts of the deed. Utter v. Sidman, 170 Mo. 294. "Respectively" means relatively, as relating to each other. Respectively does not mean as "set against the other." Webster's New Int. Dict. of 1920, p. 1817; 7 Words & Phrases, p. 6177 (1st Series). This deed created contingent remainders in the heirs of Henry Willis and in the heirs of William T. Willis. 1 Tiffany on Real Property, pp. 486, 487. A remainder is contingent if the event on which it is to take effect is contingent, or if at the time of creating the estate the person who is to take is not ascertained. Sullivan v. Garesche, 229 Mo. 496. The ancient learning and historical development of conveyance by deed, has been ably presented by the general text-book writers. 9 Am. & Eng. Encyc. Law, pp. 94, 137; 18 C. J. 172. The Missouri statutes and decisions have rendered the old learning obsolete, except that it may serve to illustrate the correct method of legal reasoning. Deed from Henry Willis to plaintiffs did not create a merger of the life estate and the remainder, for the reason that William T. Willis did not join in that conveyance. Tiedeman on Real Property, p. 40, sec. 63; 9 Am. & Eng. Encyc. Law, p. 162. (4) A case in which there are four life-tenants, the children of each life-tenant taking the share of the deceased lifetenant, as remaindermen. Jeffries v. Butler, 56 S.W. 980, 108 Ky. 531; 18 C. J. pp. 306, 307, 310, 311. "The intent and purpose of this conveyance" is to be sought by the Supreme Court. The surrounding circumstances may be considered in interpreting the deed. 18 C. J. 311; Ashbaugh v. Ashbaugh, 273 Mo. 360; Elsea v. Smith, 273 Mo. 412; Tiedeman on Real Prop., pp. 156 to 160, 311. (5) The fact that Henry Willis paid the consideration for this deed, tends to support the interpretation that he and his heirs took no less interest than William T. Willis and his heirs. Tennison v. Walker, 190 S.W. 12. Appellee's possession did not become adverse to appellants until the death of both of the life tenants. Myers v. Viverett, 70 So. 451; Hauser v. Murray, 256 Mo. 58, 86; Barnes v. Keys, 127 P. 261; Coulson v. La Plant, 196 S.W. 1144; Nichols v. Hobbs, 197 S.W. 258; Herndon v. Yates, 194 S.W. 46; R. S. 1919, sec. 1970; Armor v. Frey, 253 Mo. 474; Matlack v. Kline, 190 S.W. 408. (6) Parol evidence is not admissible on the question of the interpretation or meaning of this deed. Lemon v. Lemon, 273 Mo. 493; R. S. 1909, p. 994; R. S. 1919, sec. 2174; Tapley v. Ogle, 162 Mo. 197; Hunter v. Patterson, 142 Mo. 318. (7) Neither limitations nor laches can be invoked against plaintiffs, for the reason that their cause of action did not accrue until after the death of both life tenants. Hall v. French, 165 Mo. 442; 10 Am. & Eng. Encyc. Law, p. 517; Hull v. Cavanaugh, 6 Mo.App. 147; Tiedeman on Real Property, p. 41, sec. 65.

A. G. Knight, H. E. Thompson and Lesley P. Robinson for respondents.

(1) In the interpretation of deeds, the proper construction of the instrument must be sought from the entire deed, and not merely from any particular part of it. The intent of the parties is the pole star to guide courts to a correct interpretation. Buxton v. Kroeger, 219 Mo. 245; Meyer v. Christopher, 176 Mo. 594; Williamson v Brown, 195 Mo. 336; McCullock v. Holmes, 111 Mo. 445; Utter v. Sidman, 170 Mo. 284; Howell v. Sherwood, 242 Mo. 536; Eckle v. Ryland, 256 Mo. 440; Warne v. Sarge, 258 Mo. 162. And the cast-iron rule, that formerly obtained in this State, in case of repugnancy, that the first words in a deed and the last words in a will shall prevail, no longer obtains. Utter v. Sidman, 170 Mo. 284; Johnson v. Calvert, 260 Mo. 452; Hunter v. Patterson, 142 Mo. 310; Walton v. Drumtree, 152 Mo. 489; Tennison v. Walker, 190 S.W. 9; 18 Corpus Juris, p. 256. (2) "Or" is used to mark an alternative and present a choice, implies an election of one of two things. 29 Cyc. 1502; Bouvier's Law Dictionary; Eckle v. Ryland, 256 Mo. 449. (3) "Respectively" means singly or severally considered. 34 Cyc. 1671; Alsop v. Russell, 38 Conn. 99, 36 L. R. A. 812; Wolf v. Lake Erie, 45 N.E. 708; Walson v. Foxon, 2 East. 36, 41. (4) Where a deed is fairly susceptible of different construction, the court may ascertain the situation and circumstances of the parties to determine the meaning of the language used. Warne v. Sarge, 258 Mo. 162; Elsea v. Smith, 273 Mo. 412; Bernero v. McFarland, 134 Mo.App. 290; Long v. Tims, 107 Mo. 512; Wolf v. Dyer, 95 Mo. 545; Hardy v. Matthews, 38 Mo. 121; Carter v. Foster, 145 Mo. 383; 2 Devlin on Real Estate (3 Ed.), p. 1526; 18 C. J. p. 260, 311; Tiedeman on Real Property, 156-159. (5) In the interpretation of deeds the construction and meaning given to the instrument, by the parties in interest, may be shown in evidence. Carter v. Foster, 145 Mo. 383; Scott v. Scott, 95 Mo. 318; Patterson v. Camden, 25 Mo. 22; Tennison v. Walker, 190 S.W. 14; 2 Devlin on Real Estate (3 Ed.) p. 383. (6) Oral statements made by those in possession or in interest, are admissible as verbal acts to characterize the possession. Heynbrock v. Hormann, 256 Mo. 21; Akins v. Adams, 256 Mo. 2; Allen v. Morris, 244 Mo. 362; Scott v. Scott, 95 Mo. 318; Tennison v. Walker, 190 S.W. 14; Patterson v. Camden, 25 Mo. 22; Dunlap v. Griffith, 146 Mo. 283; Mississippi Co. v. Vowels, 101 Mo. 225; Topper v. Perry, 197 Mo. 542; Hinters v. Hinters, 114 Mo. 26; 3 Elliott on Evidence, secs. 2195 to 2199. Henry Willis told Blair Welch that "it was Willie's land" and said he "managed it for Willie." And Henry told old Fulkerson that "I must soon get out of it what I get right away" for "Willie and his heirs will soon get it." (7) When William T. Willis reached twenty-one years of age he was then vested with a life estate in the real estate in question. R. S. 1919, secs. 2267, 2269; Waddel v. Frazier, 245 Mo. 400; Chiles v. Bartleson, 21 Mo. 344; Riggins v. McClellan, 28 Mo. 23; Lamert v. Lidwell, 62 Mo. 188; Godman v. Simmons, 113 Mo. 122; Emmerson v. Hughes, 110 Mo. 627; Charles v. Pickens, 214 Mo. 212. (8) On the death of William T. Willis in 1918 his heirs or grantees took the remainder in said estate in fee. A remainder being a remnant of an estate in land after the termination of a particular estate -- in this case the life estate of William T. Willis, R. S. 1919, secs. 2267, 2269; Dickerson v. Dickerson, 211 Mo. 488; Chew v. Keller, 100 Mo. 362; Buxton v. Kroeger, 219 Mo. 224; Sullivan v. Garesche, 229 Mo. 505; Eckle v. Ryland, 256 Mo. 450; 4th Kent's Com. (11 Ed.) pp. 197, 209. (9) The plaintiffs in this action are barred by the Statute of Limitation, even if they were ever seized with an interest in the lands. R. S. 1919, sec. 1305. Rutter v. Carothers, 223 Mo. 647; Gray v. Yates, 67 Mo. 601; Graham v. Ketchum, 192 Mo. 15; Ogle v. Hignet, 161 Mo. 47; Hall v. French, 165 Mo. 439; King v. Theis, 272 Mo. 416; Schneiderheinze v. Berg, 269 Mo. 270; DeHarte v. Edmonds, 200 Mo. 246. (10) Defendant and his grantors have been in the open, notorious, peaceable, adverse, exclusive possession of the lands in question claiming title to the same for more than twenty-one years, and holding adversely to plaintiffs, and is the lawful owner by adverse possession. Whitaker v. Whitaker, 157 Mo. 342; Whitaker v. Whitaker, 175 Mo. 1; Gray v. Ward, 234 Mo. 297; Hinters v. Hinters, 114 Mo. 26; Robinson v. Allison, 192 Mo. 366; Heynbrock v. Hormann, 256 Mo. 21; Frame v. Humphreys, 164 Mo. 344; State v. Taylor, 111 Mo. 448; Girard v. St. Louis Car Wheel Co., 125 Mo. 385. (11) When Henry Willis conveyed all his right, title, and interest in said lands to his heirs, the plaintiffs, September 18, 1895, said estate instantly merged into their alleged fee if they had such fee, and if they ever had any right to possession it occurred on that date, and they could not wait till the death of the life tenant. Whitaker v. Whitaker, 157 Mo. 342; Nickey v. Leader, 235 Mo. 43; Missenheimer v. Amos, 221 Mo. 371; Swope v. Ward, 185 Mo. 316; Boyce v. Railroad, ...