Wilson v. Frost

• Decision Date: 15 February 1905
• Citation: 85 S.W. 375,186 Mo. 311
• Parties: MARION WILSON v. HATTIE FROST et al., Appellants
• Court: Missouri Supreme Court

85 S.W. 375

186 Mo. 311

MARION WILSON v. HATTIE FROST et al., Appellants

Supreme Court of Missouri, First Division

February 15, 1905

Appeal from Daviess Circuit Court. -- Hon. A. M. Woodson, Special Judge.

Affirmed.

Hicklin Leopard & Hicklin and Wm. M. Williams for appellants.

(1) Husband and wife may take real estate as tenants in common where the deed by which they take contains language clearly indicating an intention on the part of the grantor that they shall so take. 1 Preston on Estates, p. 132; 2 Preston on Abstracts of Title, p. 41; Shep. Touch., 132; 4 Kent's Com., p. 363; 1 Washburn on Real Property, p. 674; Sharswood's Notes to 2 Blackstone's Com., p. 182; 1 Reed's Blackstone, p. 470; Bishop on Law of Married Women, p. 616; Freeman on Co-tenancy and Partition, p. 72; Tied. Real Property, 244; 2 Jones Law of Real Property in Conveyancing, sec. 1797; 15 Am. and Eng. Ency. of Law (2 Ed.), 847; Stew. Husb. & Wife, 307-310; Hunt v Blackburn, 128 U.S. 464; Carroll v. Reidy (D C.), 5 App. Cas. 59; Fulper v. Fulper, 54 N.J.Eq. 431; McDermont v. French, 15 N.J.Eq. 78; Hicks v. Cockran, 4 Edw. Chy. 107; Hadlock v. Gray, 104 Ind. 599; Thornburg v. Wiggins, 135 Ind. 178; Edwards v. Beal, 75 Ind. 401; Wilkins v. Young, 144 Ind. 1; Brown v. Brown, 133 Ind. 476; Fladung v. Rose, 58 Md. 13; Baker v. Stewart, 40 Kan. 442; Cloos v. Cloos, 55 Hun 450; Jooss v. Fey, 129 N.Y. 17; Miner v. Brown, 133 N.Y. 312; Hiles v. Fisher, 144 N.Y. 313; Hoffman v. Stiggers, 28 Iowa 310; Marchant v. Cragg, 31 Beav. 401; Paine v. Wagner, 12 Sim. Chy. 157. (2) The courts look to all parts of a deed and in construing it will if possible give effect to the intention of the grantor. McCullock v. Holmes, 111 Mo. 445; Long v. Timms, 107 Mo. 519; Brown v. Gibson, 82 Mo. 533; Gibson v. Bogy, 28 Mo. 478; Davis v. Hess, 103 Mo. 31; Bruensmann v. Carroll, 52 Mo. 313. (3) The former action of ejectment in which these appellants were plaintiffs was brought in time, as, on the death of Mary E. Cook, William Cook became a life tenant, by the curtesy, of her part of the land, and the heirs of Mrs. Cook could not sue for possession during his life. Rumsey v. Otis, 133 Mo. 85; Miller v. Bledsoe, 61 Mo. 96; Reame v. Chambers, 22 Mo. 36. (4) Husband and wife take, since the Married Woman's Acts, just as they did at common law. These acts have not changed the common law so far as they are concerned. Bertles v. Nunan, 92 N.Y. 152; cases under point 1.

Peery & Lyons and Gillihan & Kerr for respondent.

(1) The deed from Deering and wife to William and Mary Cook did not, by its terms, purport to create a tenancy in common. All of the authorities relied upon by defendants hold that the intention to make husband and wife tenants in common must be clearly and unequivocally expressed, and in the majority of the cases cited in the brief of counsel, the expression "as tenants in common," or words of equivalent import, were used in the deeds. Webb v. Webb, 29 Ala. 588; Miller v. Tunica Co., 67 Miss. 651; Kershaw v. Boykin, 1 Brev. (S. Car.) 301; Devlin on Deeds, secs. 220, 838; Doan v. Printing Co., 70 Mo. 168; Major v. Bukley, 51 Mo. 232. Where there are any words in a deed which appear repugnant to the other parts of it and to the general intention of the parties, they will be rejected. Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopina, 48 Mo. 194. "The intent of a deed, however manifest, can not prevail against a fixed rule of law." Hogan v. Melker, 14 Mo. 177; Corby v. Corby, 85 Mo. 397; Rodney v. Landau, 104 Mo. 259; Simons v. Bollinger, 154 Ind. 83. (2) The deed created an estate by entireties irrespective of the recital referred to in the preceding paragraph. The reason of the rule creating such estate is that the husband and wife, being one person in law, can not take by moieties. This proposition is asserted, and this reason for the rule is given in every case in this State which deals with the question. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Hall v. Stephens, 65 Mo. 670; Russell v. Russell, 122 Mo. 236; Bain v. Bullock, 129 Mo. 117; Hume v. Hopkins, 140 Mo. 65; Harrison v. McReynolds, 183 Mo. 533; Bruce v. Nicholson, 109 N.C. 202; McLeod v. Venable, 163 Mo. 536; 2 Black. Com., p. 181. It would seem inevitably to follow that if the husband and wife are considered as one person in law, no words in a conveyance could sever the relation or give them any other estate than as tenants by the entireties. Especially would this be true prior to the adoption of the Married Woman's Acts in this State. The great weight of authority is that at common law, and in the absence of any enabling statute affecting the legal status and property rights of husband and wife, they will, by a conveyance to them, take as tenants by the entirety, no matter what the provisions of the deed may be. Stuckey v. Keefe, 26 Pa. St. 397; French v. Mehan, 56 Pa. St. 286; Young's Estate, 166 Pa. St. 650; Dias v. Glover, 1 Hoff. Ch. 76; McCurdy v. Canning, 64 Pa. St. 39; Rogers v. Benson, 6 Johns. Ch. 437; Jackson v. Stevens, 16 Johns. Ch. 115; Barber v. Harris, 15 Wend. 617; Russell v. Russell, 122 Mo. 236; note to Thornton v. Thornton, 3 Lead. Cases Am. Law Real Prop. pp. 144 to 147; Den v. Hardenbergh, 18 Am. Dec. 386; 1 Ballard's Ann. on Law of Real Prop., sec. 238; Freeman, Co-ten. and Part. (1 Ed.), secs. 64 to 72; 26 Cent. Digest, 1371 to 1379; Ray v. Long, 132 N.C. 891; Kron v. Kron, 195 Ill. 181; Spruill v. Brom. Mfg. Co., 130 N.C. 42. (3) The deed under consideration in this case was executed in 1865 and long prior to the enactment of the Married Woman's Acts of this State; consequently the common law rule applies with full force to the instrument under consideration. This, for the reason that the Married Woman's Act of 1875, and the later amendments thereto, have destroyed the legal unity of husband and wife. Bains v. Bullock, 129 Mo. 117; Johnston v. Johnston, 173 Mo. 91; Stuckey v. Keefe, 20 Pa. St. 397; 3 Lead. Cases Am. Law Real Prop., p. 150; McNeely v. South Penn. Oil Co., 52 W.Va. 616; Pease v. Whitman, 182 Mass. 363.

OPINION

VALLIANT, J.

This is a suit in ejectment for an undivided half of 160 acres of land.

Plaintiff claims under two deeds conveying the whole 160 acres to him, one from William Cook, and Mary E. Cook, his wife, dated July 26, 1875, the other from William Cook, dated December 9, 1875, after the death of Mary E. Cook.

Defendants are the children and grandchildren of Mary E. Cook, deceased, and claim by inheritance from her.

Plaintiff went into possession of the land in the summer of 1875, under the deed from Cook and wife, and remained in possession until November 12, 1901. William Cook died in 1899, and after his death, the defendants in this suit sued this plaintiff in ejectment and recovered judgment for an undivided half and were put into possession thereof by the sheriff, November 12, 1901, immediately after which this plaintiff brought this suit.

At the trial of this suit, the plaintiff, in the absence of the original deed, read in evidence from a record book in the recorder's office the record copy of the deed of July 25, 1875, from William Cook and Mary E. Cook to himself. On the face of that record it did not appear that there were seals attached to the grantors' signatures, although the deed was acknowledged in due form and had been on record since October, 1875. The plaintiff's counsel stated that he offered it only as color of title in connection with his claim of adverse possession. The plaintiff relied mainly for his paper title on the deed from William Cook after the death of his wife, dated December 9, 1875.

The plaintiff's contention is that the title to the land was in William Cook and Mary E. Cook, his wife, during their joint lives as an estate of entirety and that on the death of the wife it became the husband's exclusively. If the plaintiff is right in that contention then the deed from William Cook to him, after the death of Mary Cook, conveyed the whole title and he is entitled to recover.

The defendants contend that Cook and his wife owned each an undivided half of the land as tenants in common; that on her death her undivided half descended to them as her heirs at law, subject to William Cook's life estate by curtesy, which life estate ended at his death in 1899, at which time their right to possession accrued.

The title which Cook and his wife had to the land was derived from a deed from Henry G. Deering and wife to them of date November 13, 1865, and was in these words:

"This indenture made and entered into this the thirteenth day of November in the year of our Lord one thousand, eight hundred and sixty-five, between Henry G. Deering and Malinda M Deering, his wife, of the county of Daviess and State of Missouri of the first part, and William Cook and Mary E. Cook of the county of Daviess and State of Missouri, parties of the second part, that is to say, to the said William Cook the one undivided one-half interest and the said Mary E. Cook the other one undivided half interest in the following described land, witnesseth: That the said party of the first part for and in consideration of the sum of two thousand, eight hundred dollars to them in hand paid by the party of the second part, the receipt of which is hereby acknowledged, have granted, bargained and sold and by these presents do grant, bargain and sell the following described land situated in the county of Daviess and State of Missouri The west one-half of the southwest quarter of the northwest quarter of section five; also the north one-half of the northwest quarter and the north one-half of the northeast quarter of section fourteen, all in township fifty-nine, of range twenty-nine, containing 180 acres, as per the government survey, be the same...