273 Mo. 396 | Mo. | 1918
This is a suit brought by the respondents against the appellants to quiet title to 240 acres of land in Saline County. Upon a trial before the court a judgment' was rendered for the respondents, from which the appellants have prosecuted this appeal.
The respondents claim as devisees under a.will of Earle N. Elsea, the appellants as the heirs of Paschal E. Smith, who is the common source of title.
' In March, 1883, Paschal E. Smith made a deed to the land in controversy to his daughter Lou E., intermarried with one George W. Elsea. Soon thereafter the grantor built a dwelling on the property, as he stated to his neighbors, “for his daughter Lou,” to whom he said he had deeded the land. She and her husband'
The granting clause of this deed is as follows: “Unto the said Lou E. Elsea, and to the heirs of her body begotten.” Between the description of the land and the habendum clause appear the following provisos: “Provided, however, if the said Lou E. Elsea should die without heirs of her body, said lands shall revert to and become the property of Paschal E. Smith, and in case of his (said Paschal E. Smith’s) death the same shall descend to his heirs. Provided, further, if the said Lou E. Elsea, shall die, leaving surviving heirs of her body begotten, and the said heir or heirs shall die without issue then the said lands shall revert to and become the property of the said Paschal E. Smith and in case he be then deceased, the same shall descend to his heirs.” The habendum clause is: “Unto the said Lou E. Elsea and to her heirs as above set forth and not otherwise forever.”
Earle N. Elsea, named herein, is admitted to have been the only heir of the body of Lou E. Elsea. He lived to manhood and used and occupied the land as his own until March, 1912, when at twenty-seven years of age he died without issue. He left a will devising a life estate in the land to his father, George W. Elsea, and directing upon the death of the latter that the land
The specific nature of the respective claims of the respondents to the land is, therefore, as follows: George W. Elsea as life tenant; the American Bible Society as residuary legatee; and Henry S. Colvert as trustee and executor named in the will. The property is and has been since the death of Earle N. Elsea in the possession of the life tenant.
The record is indefinite as to the date of the death of Paschal E. Smith. It is sufficient, however, for us to know, which fact does definitely appear, that he was not living at the time of the institution of this suit, and that he died before Earle N. Elsea. Appellants, as heirs at law of Paschal E. Smith, claim title to tfye lands upon the assumption that there was no sufficient proof of the delivery of the deed from him to Lou E. Elsea, and, as a consequence, that the execution and delivery of same to her former husband, George W. Elsea, after her death, created in Earle N. Elsea as the “only heir begotten of the body of Lou E. Élsea” a defeasible estate in fee, determinable upon the death of the latter without issue; that upon his death without issue the fee, under the terms of the deed, vested absolutely in appellants as heirs of Paschal E. Smith. They also claim alternatively that, if the delivery of the deed in the lifetime of Lou E. Elsea be conceded, her life estate thereby created did not, in view of the death of Earle' N. Elsea without issue, destroy their alleged resultant fee in the land which vested upon the delivery of the deed.
The rulings of the trial court assigned as error are: the admission of the testimony of George "W. Elsea in behalf of his co-plaintiff, American Bible Society; that the deed was delivered prior to the date of its acknowledgment; that the limitation over to Paschal E. Smith and his heirs after the vesting of the estate of Earle N. Elsea violated the rule as to perpetuities; that Sections 2872 and 2874, Revised Statutes 1909,- which abolished entails and out of a life estate created a fee, also struck down the reversionary interest claimed by appellants to
A somewhat technical, but at the same time a sufficient, reason for overruling this contention lies in the condition of the record as to the nature and extent of tire objections interposed by appellants to the introduction of this testimony. Counsel for appellants urged these general reasons as to the incompetency of the witness: “Well, we think, Your Honor, he cannot testify in the case. He is claiming by and through a deed made by his son, who is deceased, and also under a title that Earle claimed through his mother, and he was the husband of this woman Lou Elsea, and therefore, is incompetent to testify in the case.” The objection was overruled, exceptions saved and the witness was permitted to testify in the separate behalf of his co-plaintiff. The reason for the overruling of the objection and the consequent admission of the testimony involves a distinction without a difference because under the express terms of the statute the incompetency extends when applied with reason, not only to the testimony proffered in the witness’s own favor, but as well to that in favor of any party to the action claiming under him. While the objection urged is based generally upon the statutory ground of exclusion, viz: the death of one-of the original
The statute provides that “all deeds or other conveyances of lands, or of any estate or interest therein, shall be subscribed by the party granting the same, or by his awful agent, and shall be acknowledged or approved and certified in the manner herein provided.” [Sec. 2792, R. S. 1909.] Other Sections (Sections 2794 and 2799) prescribe who shall take acknowledgments and the forms of same, but they add nothing to the requirements of Section 2792, and hence need not be considered in this connection. While this section requires an acknowledgment, it is not a prerequisite to the validity of the deed as effecting a transfer of the title from the grantor to the grantee and the latter’s heirs. The purpose of the section being to protect creditors and purchasers, the title vests in the grantee without an acknowledgment as completely as if the formalities of the statute had been complied with. [Schroeder v. Turpin, 253 Mo. 258, 270; Vincent v. Means, 207 Mo. 709, 715.] The subsequent acknowledgment in no way
Section 2872, supra, is supplemented by another section which defines the manner in which the estate created by it shall vest, as follows: “Where a remainder shall be limited to the heir or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.” [Sec. 2874, R. S. 1909.] This statute which effected the abolition of the rule in Shelley’s case removes from consideration any argument that may be adduced in favor of the existence of an executory interest after the vesting of the fee. Leaving o,ut of consideration, therefore, the rule as to the more strict construction to be given to deeds creating executory interests than to wills creating executory devises (Stallcup v. Cronley’s Tr., 117 Ky. 553), we hold that under the statutes cited, where land has been conveyed to a first taker for life with limitations over, that the fee created by law in the second taker cannot be cut down by a defeasance or executory interest, but upon the death of the first taker becomes absolute. Any limitation by construction upon the estate thus created, would destroy the purpose of.-the statute. An estate in fee having been created, a remainder cannot be limited thereon because the latter must have a particular estate to support it;
The holding as to the absolute fee of Earle N. Elsea renders unnecessary a discussion of the rule as to perpetuities as applicable to this case.
The insertion of the sentence in the deed at the time of its acknowledgment that the' guardian of Earle N. Elsea was to pay the taxes on the land, although inserted long after the delivery of the deed, in no wise affected its validity. It added nothing to nor took nothing from the conveyance; its presence ivas surplusage and its consideration is frivolous.
The care manifested by the trial court in the hearing and determination of this case merits commendation. Finding no error warranting reversal, the judgment is affirmed. It is so ordered.