273 Mo. 353 | Mo. | 1918
The action was brought under Section 2535, Revised Statutes 1909,. to determine title to forty-two acres of land in Lincoln County. The plaintiff is the widow of Henry H. Ashbaugh, deceased. The defendant Dean Ashbaugh is the son by a former marriage of Henry H. Ashbaugh. The plaintiff claims title to the tract as an estate by entirety under a conveyance made
During the life of Henry H. Ashbaugh lie and his wife joined in a deed of trust conveying this land to H. H. Robinson, trustee for Mary J. Taylor, cestui que trust, to secure a debt, and by reason of their interest in the property thus acquired those two were made parties defendant. Paul Gibson, executor of the last will of Henry' H. Ashbaugh, was made party defendant and in his answer set up that the personal estate of Henry H. Ashbaugh was insufficient to pay the debts which had been allowed against the estate and that the land mentioned was liable for the payment of such debts.
The conveyance by which Henry H. Ashbaugh and his wife acquired title to the land begins as follows:
“general warranty deed.
“This indenture, made on the 11th day of September, A. D. one thousand nine hundred and nine, by and between John A. Crank and Laura Crank, his wife, of. Lincoln County, Missouri, parties of the first part, and H. H. Ashbaugh and Elizabeth Ashbaugh, his wife, each an undivided one-half interest, of the County of Pike, in the State of Missouri, parties of the second part:
“Witnesseth, that the said parties of the first part, in consideration of the sum of one dollar and other valuable consideration to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents Grant, Bargain and Sell, Convey and Confirm, unto the said parties of the second part, their heirs and assigns the following described lots, tracts or parcels of land, lying, being and situate in the county of Lincoln and State of Missouri, to-wit:”
The judgment was for the plaintiff, and defendants appealed.
In the recent case of Stifel’s Union Brewing Co. v. Saxy, ante page 159, decided by this court at the present term,the authorities in this and other States were reviewed at length, and the doctrine as it always has existed in this State was restated with completeness and precision. It was held in that ease, upon the point in issue, that the interest of the husband in lands held by himself and his wife by the entirety could not be subjected to the payment of his debts. This would seem to dispose of the. claim of the executor in this case, and likewise the claim of the attempted devisee, Dean Ashbaugh, provided the deed by which the title here was conveyed to the Ashbaughs created an estate by the entireties in Henry Ashbaugh and the plaintiff.
Attention is called in the opinion to Section 2878, Revised Statutes 1909, which in express terms allows conveyances to husband and wife to retain their common-law effect.
III. It is finally urged by the appellant that the conveyance in this case by its terms creates a tenancy in common and not an estate by the entirety. They invoke the rule laid down so often that the intention of the parties to an instrument of this character must control, even as against words having a technical legal meaning, ánd seem to fear that the lure of technical refinement and scholarly exegesis may cause the intention, in a case like this, to be passed by. They call attention to the recital in the premises of the deed “H. H. Ashbaugh and Elizabeth Ashbaugh his wife, each an undivided one-half interest.” It is claimed that here is an express intention to create a tenancy in common. It will be noted that this expression appears in the premises of the deed as a recital merely. It is followed by
A conveyance almost exactly like this was construed by this court in the case of Wilson v. Frost, 186 Mo. 311. The deed in that case conveyed to the husband and wife an estate by the entirety in the orderly parts of the deed, the granting clause, the habendum and the warranty, but in the recital in the premises of the deed, after naming the parties of the first and second part, used this expression:
“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. ’ ’
This was followed by the granting clause, the description, habendum and warranty. It shows, therefore, the clear expression of an apparent intention to vest in the grantees tenancy in common. In that respect it differs from the deed under consideration. The court held that if the conveyancer had known the difference between a tenancy in common and a tenancy by entirety he would have put in the proper place words creating the estate intended, and since he put the language mentioned in the premises as a recital, he didn’t know what the words meant and therefore it couldn’t be said that there was an intention to create a tenancy in common. It was held that if the words were to be given any meaning in the place where they were stated it was probably the intention to give assurance to the wife that she was to have as much interest in the land as her husband, and they would not, where they appeared, change the common law effect of the granting clause and the habendum in the deed.
It is a general rule that the intention must be ascertained from the language used, from what the grant- or actually said, and not what he may have meant to say. It is likewise a general rule that operative words are necessary to vest an estate. [McKinney v. Settles, 31 Mo. 541; Becker v. Stroeher, 167 Mo. l. c. 322; Coffman v. Gates, 110 Mo. App. l. c. 486; 13 Cyc. 542.] In the deed here no operative words follow or precede the recital, nor are there any words to indicate a desire to have an undivided one-half interest in the land vest in the grantees. No intention appears which would prevent the vesting of an estate by entirety.
The judgment of the circuit court is affirmed.
PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.