Wommack v. Whitmore

• Decision Date: 31 October 1874
• Citation: 58 Mo. 448
• Parties: HART B. WOMMACK, Respondent, v. BENJAMIN T. WHITMORE, et al., Appellants.
• Court: Missouri Supreme Court

58 Mo. 448

HART B. WOMMACK, Respondent,

v.BENJAMIN T. WHITMORE, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from St. Charles Circuit Court.

Lackland and Broadhead, for Appellants.

I. The defendants deny co-tenancy with plaintiff, and set up adverse possession. The defendants were in the actual adverse possession of the premises sought to be divided, and plaintiff must resort to ejectment first to try his title. In order to maintain the action of partition, the plaintiff must be in the active or constructive possession of the premises sought to be divided. The unity of possession among tenants in common is destroyed by a disseizin or actual adverse possession. There can be no constructive possession of one, where there is an actual adverse possession of another. (Lambert vs. Blumenthal, 26 Mo., 471; Rozier vs. Johnston, 35 Mo. 326.)

The evidence shows, as a matter of law, that the defendants were in the adverse possession of these premises. (Warfield vs. Lindell, 30 Mo., 272; Ang. on Lim., 5 Ed., pp. 429-432, etc.)

II. There can be but three constructions put upon the deed to Gardner, the trustee, viz:

1. That the wife of grantor, Sarah Ann Whitmore, and her children then living (of which plaintiff's wife, Tillie E. was one) took a present vested interest as tenant's share and share alike. 2. That grantor's wife, Sarah Ann Whitmore, took a life estate only, and her children then living, took a present vested remainder: Or, 3. that the wife Sarah Ann took the absolute equitable title (the legal title being in the trustee), and her children took nothing until after her death.

One of the two first constructions must be adopted in order to sustain the plaintiff's claim. If the last construction is the true one, then plaintiff has no title whatever in this land, and the judgment of the lower court is altogether erroneous.

1. It is manifest that it was not the intention of the grantor that his wife and children should take as tenants in common, share and share alike, because the conveyance was to the trustee for the benefit of “my wife Sarah Ann and her children now living, or hereafter born or to be born.” And the wife and her trustee were invested with discretionary power to sell or dispose of any property in the deed. This power of disposition is inconsistent with a tenancy in common with the children. 2. For the same reason it cannot be maintained that the deed conveyed a life estate only to the wife, Sarah Ann, and a present vested remainder to the children. The power of disposing of the fee is inconsistent with a mere life estate, and could not exist, if the children held the remainder. The person who takes a vested remainder must be in esse. 3. The most reasonable and just construction of the deed, however, is, that the trustee is a married woman's trustee, that the wife took the equitable title, with the absolute power of disposition, and that the children took nothing until her death. The legal title was in the trustee, who was to collect and pay over the proceeds to the wife during her life, and after her death (and not until after her death) the property or whatever was left of it, vested in the children and the trust became executed. (English vs. Beehle, 32 Mo., 186; McDowell vs. Brown, 21 Mo., 57; Hazel vs. Hagan, 47 Mo., 277; Green vs. Sutton, 50 Mo., 186; Major vs. Lisle, 51 Mo., 227; Turner vs. Timberlake, 53 Mo., 371; Emison vs. Whittelsey, 55 Mo., 254, 258.)

A. H. Buckner, for Respondent.

I. The action in partition was maintainable. There was no ouster, or pretense of an ouster. The evidence shows that the tenant for life died Nov. 1871, the property having been leased by the tenant for life for some years, and that the lease did not expire until the year after, when this suit was commenced (February, 1872). The plaintiff had no right of action until after the death of Mrs. Whitmore, and this suit was commenced within six months after her death, and the only evidence of an ouster is that the defendants did not regard the plaintiff as having any interest in the real estate, and appropriated to themselves the rents and profits. There is no retense of ouster or holding adversely, and the action was well brought. (Lambert vs. Blumenthal, 26 Mo., 471; Rozier vs. Johnston, 36 Mo., 326.)

II. The deed to Gardiner, the trustee, conveyed a present vested interest to his wife and children, with a life estate in the wife during her widowhood, and the remainder to his children in fee.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the St. Charles Circuit Court on the 8th day of February, 1872, for the partition of certain real estate situate in St. Charles county, in the petition described. It is charged by the petition that one Benj. F. Whitmore, late of said county, on the 22nd day of December, 1863, was seized and possessed in fee, of certain real estate in said county; that by his deed of that date, he conveyed to the defendant, Ignatius Gardiner, all of certain lands which are described in the petition, the same being a tract of land consisting of several hundred acres together with two lots (102 and 104 in block 10) in St. Charles commons, the same being all of the land owned by the grantor in said county at the date of said deed; that said lands were conveyed to the defendant, Gardiner, for the special use and benefit of the grantor's wife, Sarah Ann Whitmore, and her children, then living, or thereafter to be born. The said Sarah Ann was to have the use and enjoyment of the same during her natural life, or if the grantor should die, the said Sarah Ann surviving him, the said Sarah Ann should only have the use of said lands during her widowhood. The petition further alleged that the said Benjamin F. Whitmore departed this life in the year 186-, his said wife surviving, and that the said Sarah Ann departed this life in the year 1871; that at the time of the execution and delivery of said deed to said Gardiner, there had been born to said Sarah Ann and said Benjamin F. Whitmore, and were then living, the following children, to-wit: Benjamin T. Whitmore, Tillie E. Whitmore, Mary E. Whitmore, since intermarried with the defendant, Dominic Fletcher, and Missouri Whitmore, who is a minor under the age of eighteen years; that the plaintiff and said Tillie E. were married in the month of September, 1866, and that she departed this life in May, 1868, leaving an only child, Mary Ida Wommack, who survived her mother until the 26th day of February, 1869, at which time she died.

The petition then charges, that by virtue of the marriage of the plaintiff with said Tillie E., the birth of her child, Mary Ida, the death of the said Tillie E., and the subsequent death of the child, Mary Ida, the plaintiff became and is entitled to the interest of the said Tillie E. in said real estate at the time of the execution of said deed before set forth, the same being one undivided fourth part of said lands, and that the defendants, Benjamin T. Whitmore, Mary E. Fletcher, and Missouri Whitmore are each entitled to one undivided fourth part thereof. Partition is prayed in conformity to the rights of the parties, etc.

The parties defendant were served with process, after which a guardian ad litem was appointed for the infant defendant.

The defendants answered, denying that the said Benj. F Whitmore executed a deed to defendant, Gardiner, conveying to him said lands for the uses and upon the trust named in the petition, but averring that by the terms of the deed the lands were conveyed to said Sarah Ann, absolutely, in fee simple, and that her children received no present interest in the same; that both the wife and child of the plaintiff died before the death of the said Sarah Ann, and therefore no interest in the lands ever vested in the plaintiff; that defendant, Gardiner, had no interest in the land, he having conveyed the said lands to said Sarah Ann, in her life-time, by virtue of the powers in the deed to him, by said Benj. F. Whitmore

The defendants further stated in their answer, that they were, at the commencement of the suit, in the actual possession of the lands named in the petition, holding the same adversely to the plaintiff, and not acknowledging any right in the plaintiff to any part of the premises, wherefore plaintiff had no right to partition, etc.

A replication was filed, putting in issue the affirmative facts stated in the answer.

The case was tried by the court, a jury having been waived by the parties. No question is made in the pleadings, and none was made on the trial, nor is any question made in this court, as to the date of the execution and delivery of the deed from Benj. F. Whitmore to Ignatius Gardiner, nor as to the number and names of the children of Sarah Ann Whitmore, nor as to the time of the marriage of the children, nor of the death of the said Sarah Ann and her daughter, Tillie, nor as to the birth and death of Tillie's child--all of these facts are conceded to be truly stated in the petition. The plaintiff, on the trial, read in evidence the deed from Benj. F. Whitmore to Ignatius Gardiner. This deed conveys the land named in the petition to Gardiner; the substantial parts of the deed being as follows. After acknowledging the consideration of one dollar the deed proceeds: “Hath granted, bargained and sold to the party of the second part, for the special use and benefit of my wife, Sarah Ann, and her children now living or hereafter born, or to be born, the following described real and personal property.” (Here follows a description of the lands named in the petition with a large quantity of personal property.) The deed then proceeds: “To have and to hold the above described property to...