Wimpey v. Ledford

• Decision Date: 25 May 1915
• Docket Number: No. 17098.,17098.
• Parties: WIMPEY et al. v. LEDFORD et al.
• Court: Missouri Supreme Court

177 S.W. 302

WIMPEY et al. v. LEDFORD et al.

No. 17098.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, McDonald County; Carr McNatt, Judge.

Action by Rela Ann Wimpey and others against Mary E. Ledford and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. E. Benton and Horace Ruark, both of Neosho, for appellants. O. L. Cravens, of Neosho, for respondents.

WALKER, J.

This is an action nuder section 2535, R. S. 1909, to ascertain, define, and adjudge the title, estate, and interest of the parties thereto in certain lands in McDonald county described in the petition. The court below found for the plaintiffs as to part of the lands and for the defendants as to the remainder. From this judgment plaintiffs appeal.

Samuel Ledford is the common source of title under whom all the parties claim. In March, 1909, he died intestate, leaving his widow, Nancy, and ten children surviving him. The widow died before the institution of this suit. The parties plaintiff and defendant constitute eight of these children, two of same not having been made parties hereto. The plaintiffs each claim title by inheritance to one undivided one-tenth of the lands in question. The defendants claim to own the fee in the lands by virtue of a deed executed and delivered to them by Samuel Ledford and his wife in April, 1904. This instrument is in the ordinary form of a warranty deed. Samuel Ledford and wife, Nancy, are the grantors, Mary and Easter Ledford (the defendants) are the grantees, and the consideration is $1. This limitation in the deed follows the description of the land:

"This deed is made with the understanding that the aforesaid Samuel Ledford and Nancy Ledford shall have all controlling power of the above-described premises during their lifetime, and at their death then the title is to pass to parties of the second part."

Plaintiffs contend that these words render the instrument testamentary in character, and hence ineffectual to convey title as a deed. Defendants claim that the instrument passed title, and that they are the owners in fee of the lands. The controversy, therefore, demands a determination as to the character, and, as a consequence, the effect of the said instrument.

For a complete understanding of the ruling of the trial court it is pertinent to say that it found for the defendants as to all the land in the deed in question sufficiently described to enable it to be located. As to the remainder, the fee not having passed, on account of the imperfect description, the finding wan for plaintiffs

I. Preliminary to a consideration of the foregoing sole material issue herein, we advert, in passing, to respondents' complaint, not unfounded, as to the insufficiency of appellants' abstract. While it presents the entries from the record proper in a somewhat confused and meager manner, enough appears to enable the appellate court, after much labor which might have been obviated by a compliance with our rule 13 (169 S. W. ix), to secure an understanding of the points presented for decision. This will suffice to authorize a review of the case upon the merits.

II. The instrument in question, omitting the words of limitation, possesses all the essentials of a conveyance of real estate, viz., competent parties, sufficient subject-matter or property conveyed, a valid consideration, which, though nominal, will not of itself invalidate the transfer (Weissenfels v. Cable, 208 Mo. 515, 106 S. W. 1028; Wood v. Broadley, 76 Mo. 23, 43 Am. Rep. 754; Morriso v. Philliber, 30 Mo. 145), the use of a printed or written form, apt and proper words of conveyance necessary to show an intention to convey, followed by a formal signing, execution, and delivery to the grantees (2 Black. Comm. pp. 296-308; 13 Cyc. pp. 526-573). In the presence of these requisites of a deed, in order to give the instrument a testamentary character, it will be necessary for the words of limitation to clearly indicate an intention on the part of the grantors not to pass a present irrevocable interest in the property upon the execution and delivery by them of the writing to the grantees.

While the added words may not of themselves prove infallible guides to determine the purpose of the instrument, if in ordinary use and of well-known meaning, although, as in this case, the grantors may be illiterate, and the words used those of the draftsman, they may well serve, when taken in connection with all other parts of the writing, to indicate the meaning and purpose of the grantors in using same. The use, therefore, of the words, "This deed is made," etc., in the limitation, authorizes tie conclusion that the word "deed" is used in its plain ordinary sense as a writing executed and delivered by which real estate is conveyed. Lockridge v. McCommon, 90 Tex. 238, 38 S. W. 33. If it meant other than this, the words following should so indicate. They are, "that the...