*1 Margaret Ruby Davidson, Pyle, Roscoe Roberson Grace McGee, Clay A. B. Harold Andrew Pyle, Stone, Edwards, Ollie Virgil Rader, Appellants, Marvin Rader Atherton, Lucy R. Marshall, Eubanks, Administratrix Anna Laura
the Estate B. Marshall, Erastus Harold Francis Marshall, Fay Lloyd Ross, Marshall, Gale Mrs. Erastus B. Marshall, Lucy Jean Jr., Marshall, R. Iris Forrest Lee Marshall, R. E. Marshall, Parrish, La Crosse Lumber Company, Glen Riley Sidney Huddleston, Eubanks, W. Brown, Jerome Brown, Henry McKay Cary George Fuqua, Laudie B. Thomas, Guardian and for Howard Curator Marvin Thomas. No. (2d) S. W. 295. One, September 4,
Division 1945. A. and W. Frmhen for A. Farris appellants. Eugene *2 Rogers, Aull, Jr., respondents. William and lice Skelton for Arthur *3 counts, ejectment OSDOL, VAN C. Petition two ejectment partition County. By land count in plain- in Carroll sought land. possession recover one-half interest tiffs. prayed An answer was filed certain defendants in which was declaring be the court enter a decree sole owners. them eject- upon The was submitted in the trial the count cause court having ment, jury trial fact been waived. of the issues of. granted all the trial defendants’ .evidence, At'the' close of request for a declaration of law that “under the and the evidence law judgment findings Upon must be for ren- defendants.” dering judgment, its the court found “that plaintiffs are not of, possession of, owners are not entitled to to,” in and the land. trial court also sustained of or interest The partition. appealed. motion to dismiss the count in Plaintiffs have involved, appellate juris- to real estate is Title and this court has 3, Missouri, Y, diction of the cause. Section Article Constitution of 1945; Hughes, 958, 544; State ex rel. Brown v. 137 W. Mo. S. 2d Murphy Milby, 1080, 518; 130 W. S. 2d Davidson et al. al., App., v. Eubanks 185 W. 73. et Mo. S. 2d upon decision of the case turns the construction of deed 1921, whereby Boberson, executed one C. P. who died December 30, 1928; his Mary Boberson, September 22, who died acquired title to the If land. the deed be held to have vested Mary title in C. P. Boberson entireties, Boberson as tenants judgment for defendants should be affirmed. if the However, held vested the title in C. P. Boberson and common, Boberson as tenants in the plaintiffs, nephews and nieces law heirs at of C. P. Boberson, the owners of undivided *4 one-half property. interest 1In trial the cause, of trial tentatively admitted a wide range of extrinsic theory evidence on the that such evidence “would ” light throw on the parties intention . . . And, of the . as stated súpra, a declaration Of law in the nature of a demurrer to the evidence given at parties the conclusion of all the evidence. The herein large portions have' devoted of questions their briefs to of the ad- missibility of the supra, evidence noted and of the effect of such evidence if admissible. And parties are not as one in their views upon the effect giving of of peremptory declaration of law (jury waived) trial of the action. legislature The has now commanded this court to a review (tried upon jury) facts a upon without both the laAvand the equitable evidence as suits of an (d), nature. Subsection Section of Civil Code Missouri. No evidence, other than which shows surrounding circumstances and parties situation of the to the at of its execution, the time itself, and the deed will be considered ruling the re’viewof the instant ease—this broad is here made be having instrument, weight cause, giving examined the due whole showing parties circumstances and situation of the evidence made, no such ambiguity, repug time the deed we believe or appears require as nancy, the deed would court to consider other ascertaining and extrinsic parties; evidence in intention of albeit, construing deeds, necessary in some cases in to con sider other evidence. body (except description land)
The of of instru general warranty ment, Mary whereby C. Roberson and P. acquired title, is here Roberson set out in full. ‘‘ Indenture, day 1921, by This February, on the 19th Made of and Edgar Mary between M. wife, James and his Edgar, J. of Carroll County, Missouri first and C. P. Roberson Roberson, Mary county common of the of Carroll party part, the State of Missouri of the second
“Witnesseth, party said first -in part, for and con- sideration of the sum of paid Fifteen Thousand Dollars to them party said of part, receipt hereby the second of which ac- knowledged, Grant, Convey Bargain do these presents, Sell, and Confirm party part, unto said of their the second heirs assigns, following Land, Lots, described or Parcels Tracts of
“To premises aforesaid, Have and To Hold the with all and sin- gular rights, privileges, appurtenances, and immunities thereto belonging anywise or in appertaining, party unto the said part, assigns second forever, unto their heirs and the said James Edgar Edgar, they Mary hereby covenanting M. his lawfully premises seized of indefeasible fee in the conveyed; they good right convey same; herein premises that the are free and of clear encumbrances or done they under whom claim; suffered them those and that will Warrant and Defend the title said unto the party part, assigns forever, of the second and unto-heirs against the lawful claims persons demands all whomsoever.” shows, stated,
The evidence that at the time execution Mary Roberson and Roberson the deed C. P. were husband and wife. descendants; Roberson had no C. P. Roberson had two living (one, son, deceased), now children then had who been born marriage. previous to her of *5 conveyance, knowing
As examine the that we the evidence grantees wife, to have been husband and shows we once the become significant of the use words —“as in mindful of common”—(cid:127) technically aptly how persons which two words or more quantum of take hold some estate in by land. Tenants the quantum entireties would hold a of essentially estate in "different expression meaning tenure. Since of such definite was in de- used scribing grantees, we now provisionally that, by the consider des- ignating grantees P. Mary the com- C. Roberson “as tenants in deed, quantum mon” in that whatever the was intended of estate by conveyed by unto them deed should be the taken held- them, entireties, as tenants the but “as tenants common.” in not. But, having regard formal of a for the different divisions we describing grantees the words “as tenants common” the in notice clause, granting an operative is, were that not in used the not habendum, part in that the of premises but were recited of clause designated parties (We at- deed which the instrument. the the premises granting phrasings. In the above the tend distinctive other premises habendum, clause, in the clause, warranty, grantees “party” of were referred to as singular part. “party” believe of We the uses of the second significance upon question of referring grantees are no to the of parties. grantors were also referred intention of the Note that deed.) clause of “party” of the first language operative clauses, considered see that And we is such premises, recital as would vest the from the apart simple; but, grantees ah since with fee grantees operative of the deed would wife, clauses vest husband as tenants to the land in the entireties. simple title fee language operative on effect of the these With observations grantees, aware marital relation we become and of the clauses inconsistency between clauses and the apparent anof recited in the deed. in common” “as tenants words traditionally their ignore formal divisions-and will the deed’s But, we integrate language of as an functions, and read the the deed assigned clearly inconsistency. (it It now seen seems to whole. There no an estate in fee it was the intention us) that P. and Rober- conveyed by the deed unto C. simple should not to be vested intended must have been were son, but it although they entireties, as tenants simple estate fee with the they, simple to whom the fee es- wife, inasmuch as husband were However, as tenants in common. conveyed, were described tate expressed without examination opinion thus our we have respect ordinarily given the effect with for authorities, considered during acquire and wife coverture whereby husband conveyance a grantees. land as title to law, conveyance as at common husband state, In this ordinarily tenancy by during creates a coverture joint grantees wife seemingly this court decisions of Some earlier entireties. law husband and be- at common view supported
307 relation, acquire real unity in marital could not of their cause (Examine Wilson v. common. property by deed'as tenants in know no 375.) But, we now there is Frost, 311, 186 Mo. 85 S. W. acquir- them principle prohibiting
inflexible
common law
of
fronuso
Peters
ing
question
was first resolved
this state
estate. The
court adhered
424,
v.
312
280 W.
wherein this
Peters,
609,
Mo.
S.
expressed in the
Supreme
to
the United States
the view of the
Court of
9
125 at
Blackburn,
page 469;
case of Hunt v.
pages 126-7, take, law,
“Undoubtedly, husband and wife did at common conveyance common jointly, under a to them as tenants in of land law, joint tenants, . But it was also at common . . true agreeable that, reason, natural from point fact, as ‘in and to free and individual artificial the husband and wife distinct deductions, in com- persons, granted . . . when lands are to them as tenants thereby union, mon, treating respect their social them without they persons will hold other and individual moieties, as distinct Washburn, b; Estates, p. 132; do.’ 1 on 1 would Preston Inst. (2 Prop. (4th Ed.), 674; French, Eq.
Real McDermott 15 N. J. p. v. McCarter) 78, 80.”
In (wherein the Peters was held the husband and that grantees examined, in the as tenants deed vested title were with common) 1113, quoted p. R. L., the text of 13 C. see.
“if conveyed land is with limitation to husband and wife they regarded.” to hold as common, will In be so examined, grantor the deed did'“bargain, sell, transfer and con- vey Sehaehner, to the said John Sehaehner Sophie and his 'wife, ’’ assigns tenants in common, their heirs and forever. The court .to ruling said,
“It State, law, is true in common prop- this as at real where erty conveyed husband wife limiting and there are no words operative deed, they clauses en- take tirety. But rule, adopted jurisdictions, we think the in most that, effect clauses e., where the i. either both, clearly express clause or the habendum or the intention that husband and are to take and hold title as wife common, tenants in expressed then take the estate thaji provided in the entirety, deed rather as tenants is none applicable less controlling in our own State. It therefore follows from what that, we have here inasmuch said as the sheriff’s deed to Sophie wife, clearly John Sehaehner and his Sehaehner, unequivocally recites in its are to take conveyed hold land title to the as tenants*in common, appellants’ assignment (in first error ruling tenancy that the created a common) (312 must be denied.” pages 623-4.)
In the case Frost, say, of Wilson words “that is to supra, the said William Cook the one-half interest undivided one Mary immediately E. Cook other one half interest” undivided followed of a William deed which *7 designated E. (a wife) Cook husband and were as of the part. second granting Neither the the habendum contained clause nor indicating conveyed tenancy words that the as a estate was to be held in conveyancer common. The court that if the “knew the dif- tenancy by ference between a in common . . . and an the estate entirety creating and intended the to avoid the latter and to create former he would more clear, if, his intention more but is made probable, judging nothing éstates, from deed, his he knew about such meaning then we vague, cannot attribute a his if such to otherwise altogether meaningless, injected not the inappropriately words into premises page (186 322.) deed.” Mo. at The court further meaning observed that if the words had in connection they which placed, they give probably were were intended to assurance to the wife that was to much in as her she have as interest the land husband.
In Ashbaugh Ashbaugh, 353, 72, v. 273 Mo. 201 S. W. involved was held an to have vested in husband and estate a wife by Immediately following naming the entireties. grantees, appeared. recital “each an one-half interest” undivided court, Said the
“. . . It is claimed is an create here intention to tenancy expression a in appears common. It will be noted that this premises by merely. of the deed as a recital It followed which recital question clause is in the usual form. The appear orderly by parts deed, part does not which vested, warranted; by any language an estate is limited it does not purport half to vest in undivided and does interest say they might in what are to have half interest. undivided It far paid, as well be in consideration so as the terms of an instru- conveyed. go, property ment . . . as in the general “It is a that the intention from must be ascertained rule language used, grantor actually sáid, from what the and not what say. general operative he a have meant to It likewise rule that ” (273 necessary pages words to vest an . . . estate. Mo. at 358-360.) 387, Wilhite, 448, 284 224 W.
In Wilhite v. Mo. S. the deed exam- tenancy create husband entire- ined was held to a and wife alike,” which it ties. Here the words “share share was contended tenancy immediately common, recited limited the estate were designating said, following grantees. The the clause use “There is no doubt but that the words ‘share and share operative parts if inserted in the alike’
309 common; or in habendum, a tenancy would have created The inconsistent, words are properly used, when with the existence of (cid:127) joint tenancy tenancy by or a entirety: . . . “But will be noticed the words ‘share and share alike’ appear in merely. They may of the deed as a recital have referred paid consideration and not acquired. the . . . The deed which vests and confirms title grantee 'it in the are in a form tenancy which would create (284 (cid:127)entireties.” Mo. at pages 392-3.) Keller, And Keller see page 740, 731 at S. W. 2d 157. Ashbaugh examination of the Peters, Wilson, and Wilhite has been eases, supra, us, useful because cases confirm the conveyance rule that —while a ordinarily to a husband and will wife tenancy create intention, clearly the entireties —an expressed in conveyance, shall take as tenants in common or as tenants, 2, will be effective. Tiffany, Vol. The Law Property Real (3d Ed.), 431, p. 221; S., sec. C. J. Husband Wife, see.
pp. 447-8. In case, the Peters it conveyed was held that the sheriff’s deed ‘‘ ’’
an and common, estate to the husband wife as in tenants inasmuch “clearly unequivocally” as the deed and in recites its ‘‘ that so take and hold unequiv are to title. Does the clear and recitation, grantees clear expression, (husband ocal” or that and the wife) to hold as common, expressed are tenants in be to recited or a deed, may effectively in an clause of in order that the deed express parties? directly the intention No case has been cited deciding very question. this We believe there is no settled rule of in property strength real this on requiring, state so the of which titles have been vested.
In the ease of Utter v. Sidman, 284, 702, 70 W. Mo. S. speaks court conveyancers of the obstacles which encountered great olden times when care was a part observed confine to each assigned deed parts its several function —the of the instrument were given important controlling meaning, and place and the in the meaning where grantor instrument expressed was to be gravest was considered importance. provision No of a was impinge allowed to province on the of another. court noted various formal parts or technical of a deed, and then that form- erly, grantor might convey while a pleased, yet, he in order to effective, make his obliged intention express he in it set. and language technical proper places right at and in order clause of deed. The it observed that is so clear a not that court, construing an instrument giving controlling effect to the technical rules of conveyancing, grantor’s ascertained or effectuated a real intention. The court then stated the modern rule, which and, prevails state, simpler this is much likely more effectuate meaning. parties, especially intended The intention of the gathered from four grantor, as corners of now the expressed any- "That intention pole star of construction. instrument, simpler plainer words, in the where (if better, it, will and the court will it does impart enforce positive law) in what contravene no matter of the instru- not 294.) at (170 page is found.” Mo. The case was said to be ment it subject leading Keller, supra, in Keller v. in- cases on the one that, rule, to the other rules of opinion which it is stated construc- tersely are aids. These cases state modern rule. tion considered 128, 429-430; Jur., S., Deeds, pp. and 16 .(See C. J. sec. Am. now 570.) 237, p. But, because of differences of the lan- Deeds, sec. consequent in these construed cases differ- guage the deeds directly point upon problems presented, the eases not ent question. instant 354, 783,
In Walker 346 Mo. 141 S. W. 2d there were Deppe, following deed, immediately recited the clause naming prior (sisters) to the clause of joint conveyance, "as the w'ords tenants language was said This to be declaration that common.” joint tenancy, convey- granted and the court held the estate It is true involved so vested estate. that the case the con- ance providing every reference to our struction of deed with statute persons, more granted in real or devised two or "interest and trustees husband and shall be a other than executors expressly declared, grant in such tenancy common, in. unless tenancy.” 1939, A., devise, Section R. S. to be R. S. Ashbaugh cases, 3504. And court referred to and Wilhite sec. questions cases ruled under the common law. Never- supra, as which analogous Walker to the theless, we believe that the ease *9 a grant more bar, persons inasmuch as under the statute to two or wife), (other than and trustees and husband and creates executors tenancy expressly joint tenancy; a a in unless declared to be common grant seen, a case, and in husband and creates our we have to wife clearly entirety, an the unless the instrument estate ex- (or tenancy joint tenancy) a common a is presses in intended. stated, said, (strangers persons be more it could two or Otherwise statute), respect relationships excepted with in the the or offices joint prima an estate are tenants granted grantees, to whom facie granted common; and a to whom an in husband joint grantees, prima facie tenants the It was said entireties. tenancy joint an of a in Walker declaration the sufficient, clearly appears any part in deed is if it on con- the of from four corners that such the inten- struction of the deed the the grantor. "parties part” in phrases of The of the second tion the part, and of second parties the granting clause and “unto the assigns repug- in habendum were not forever” the heirs to their of deed “as premises in the description parties the nant to the common,” that the for reason in joint tenants not tenants granted common, where or tenants in grantees, whether phrases case, the “said simple. So, in the instant in fee an estate assigns” in their heirs part, second party of the their party part, of second and unto and “unto the said clause repugnant assigns in habendum are not forever” heirs in premises in common” “as tenants description of the deed. of Wilhite eases be distin- Wilson, Ashbaugh, and the can bar; say wish to that those
guished from case at and we do not construing character of in- great in like cases are not of assistance language.' cases, In those the re- vague or uncertain using struments premises, in connection with words when inserted cited operating clauses of the designating parties above clause vague meanings they equivocal or did deeds, of such were anywise of clearly indicate that it was intention held; granted were to express how the' estates thereinafter be premises when so inserted in the were, recited at least words affecting susceptible other than as the estates deeds, meanings, respective opinions Therefore, the granted, respec- as in the noticed. clearly deeds, whole, language as a contained no tive each considered common expressing that tenancies in were intended. Had the words clauses, deeds, operative in connection with the words been recited might indicatory affect, been of intention limit have to somehow qualify granted; and, had or estates the words been recited reviewing connection, court, cases, such those would have been put (respectively whether the deeds to the decisions considered as clearly whole) granted that the expressed an intention estates were compare held Har- to be as tenancies in common. See Welch v.
vey, Indeed, 219 S. 897. W. in substance said alike,” if the Wilhite case that the words “share and share inserted operative parts tenancy in the would have created of< common; but, appeared since deed as they may merely, paid recital referred to consideration acquired. course, not to Of words the estate when used in one con- setting may vague may equivocal, although or or nection not be or if used in another connection same words clear or certain meaning. vague-or The words tenants in common” are not “as equivocal, with and descriptive whether used connection with, grantees, in, or in connection the deed. *10 correctly It appears case, that Peters the court decided the and that seen; important readily court, case is one but seems import needlessly controlling ruling, gave formal divi- language, sions-of deed. In elsewhere in that case no anyway apparently really or repugnant or inconsistent to the “clearly unequivocally” granting intention so recited clause, problem had no of construction. Had the in- granting tention expressed been not but in designat- with above the clause and the clause connection ing parties, form, and had the clause been in usual court would been with a question confronted more like that of the inconsistency repugnancy bar. our there no ease In case pole the deed In when construed star of construction. neither necessary regard was it court should have for the technically assigned functions to the formal clauses a deed.. We hold simple deed herein vested title construed fee land (in described) to the the deed P. and in C. Roberson as common. judgment count, as to dismissing reversed order first aside, the second count is set and the cause is remanded for proceedings further opinion. with this inconsistent Bradley It is so ordered. and Dalton, CG., concur. PER foregoing CURIAM:—The opinion Osdol, C., Van
adopted as opinion judges court. All the concur. Appellant. 39450. 189 S. W. State Eskill Marshall, (2d) No.
301. Two, September Division 1945.