Hickman v. Hickman, 55 Mo. App. 303

Hickman v. Hickman

55 Mo. App. 303 | Mo. Ct. App. | 1893

Lead Opinion

Ellison, J.

By reference to the statement in this cause it will be seen that defendant, John M. Hickman, purchased the lands described of his codefendants, Thomas and Richard; that Thomas and Richard executed to him a general warranty deed in fee simple for the premises in which deed the consideration is expressed to be “the sum of $6,850, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged.” To support their cross bill, defendants, Thomas and Richard, were permitted to show that there was an additional consideration for the conveyance, not expressed in the deed, viz., that said John M. Hickman, the grantee, was to permit Thomas and Richard to remain in possession and use of forty-five acres of the land conveyed for eight years from the date of the deed; that he refused to so permit, them, but on the contrary ousted them therefrom to their damage in the *309sum of $765. And the court found for defendants, Thomas and Richard under this evidence.

It is quite true that the consideration in a deed is ordinary open and not concluded by that which is recited. We went over this ground in Jackson v. Railroad, —Mo.-. You may show additional consideration to that recited in the deed, but it must not be inconsistent with the terms of the deed itself. The additional consideration which the court here permitted to be shown was inconsistent with the conveyance of the title as expressed in the deed. The deed without reservation purported to grant the land itself with all which that implies.

Such a deed is, in effect, a deed to the possession and enjoyment of the premises. “The sale of a thing imports, from its very nature, an obligation on the part of the seller to secure to the purchaser the possession and enjoyment of the thing bought, the right to possess and enjoy being really that which is purchased.’’ Dickson v. Desire, 23 Mo. 151. It is “an ancient maxim of the law that no title is completely good, unless the right, of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit-droit. And when to this double right the actual possession is also united, when there is, according to the expression of Eleta, juris et seisinae conjunctio, then, and then only, is the title completely legal.” 2 Blackstone, 199.

Besides this, the deed here contained covenant of ^indefeasible seisin in fee simple; as also the covenant of quiet enjoyment which means, as its terms imply, that it shall be lawful for the grantee to peaceably enter at any and all times and to enjoy the shelter and profits of the estate without let or hindrance from the grantor, or other persons claiming under him. 3 Washburn on Real Property, 660 (side page).

*310It is thus apparent that a contemporaneous oral agreement that the grantor in a general warranty deed is to remain in possession of the premises conveyed and enjoy the profits thereof, is inconsistent with the deed itself purporting to convey the title, and is in contradiction to the covenants therein as herein indicated. Proof of such an agreement under the guise of additional consideration, would be in the face of the chief operative effect of a deed. It would nullify the deed by oral testimony. If it is allowable to show by oral testimony that the grantee in a deed is not to have possession and use of the land conveyed for eight years, it would be equally as proper' to show the term to be any longer period, which is but .a step from an entire destruction of the grantee’s estate. “Where the operation of the deed, in respect to the interest or estate purporting to be conveyed, is sought to be affected, such testimony is inadmissible.” Henderson v. Henderson, 13 Mo. 151.

The amendment setting up the aforesaid additional consideration for the deed aforesaid, and the evidence in support thereof, were improperly allowed. The judment will be reversed.

All concur.

Rehearing

ON MOTION NOB KEHEABING.

Ellison, J.

We are asked to grant a rehearing in this case on the ground that, the opinion is not in harmony with Aull Savings Bank v. Aull, 80 Mo. 199. In that case the familiar principle of law that the con-, sideration clause in a deed can be explained or contradicted is asserted and the evidence in that was said not to contradict the terms of the deed. The action was by the grantee for the rent of a room occupied by the grantor at the time and for a long period after conveying the property to the grantee. The court expressly *311conceded that “a reservation of real estate can only be made by deed.” And then proceeded to say that; “The question is not what the parties could do, but what-Md they do.” The court then adds that if the plaintiff in that case without a reservation formally made in the deed granted to defendant certain privileges (that of occupying the room) it is quite too late after years have gone by, to raise the point now that the reservation of those privileges should have been made in the deed with all the formality incident to a technical reservation. That the court never intended to say that you may restrict the operation of the deed as a conveyance of the absolute title by parol testimony, under the guise of inquiring into the consideration, is quite evident from the expressions of that court both before and since the Aull case. “Where the operation of the deed, in respect to the interest or estate purporting to be conveyed, is sought to be affected, such testimony is inadmissible.” Henderson v. Henderson, 13 Mo. 151. Judge Sherwood, speaking of parol proof of consideration in McConnell v. Brayner, 63 Mo. 464, says that: “It is not permitted by parol to so vary or control the operative words of the deed as to defeat it as a conveyance.” And so he gives expression, in effect, to the same thing in Lambert v. Estes, 99 Mo. 808. And so Black, J., speaking for the court in Bobb v. Bobb, 89 Mo. 419, says that inquiry against the recitation of the consideration clause cannot be had for the purpose of defeating the operative words of the deed, citing Henderson v. Henderson, supra.

That proof in the case at bar that the grantors were to remain in possession, occupancy and enjoyment of the fruits of the property they had absolutely conveyed by deed to the grantee was proof of a reservation, there cannot be the slightest doubt; The *312operative effect of the deed was, of course, to place the grantees in the possession and profits of the land; the evidence admitted was a restriction of this effect of the deed. And having this effect it should not have been admitted. The rule permitting evidence to vary the consideration of a deed is limited to such evidence as is consistent with the operative effect and purpose of the deed. “Its legal import cannot be varied.” Kimball v. Walker, 30 Ill. 511; Godfrey v. Beardsley, 2 McLean, C. C. 414; Grount v. Townsend, 2 Denio, 339; Morese v. Chattuck, 4 N. H. 230; Rhine v. Ellen, 36 Cal. 369; Farrington v. Barr, 36 N. H. 86; Goodspeed v. Fuller, 46 Me. 147.

The grantor “is forever estopped to deny his deed for the uses and purposes therein mentioned. ” So far as the deed is intended by its terms to pass a right, it cannot be contradicted. McCrea v. Purmont, 16 Wend. 460, and authorities cited. All of the foregoing cases agree that the consideration cannot be so questioned by parol as to have the effect to create a resulting trust in the grantor. And this is, in effect, what is sought to be accomplished in this case. The motion will be overruled.