276 S.W. 39 | Mo. | 1925
Lead Opinion
The plaintiffs, Emma B. Kane and Lizzie M. Wright, sued to establish their title and right of possession to undivided interests in forty acres of land in Livingston County. The plaintiffs are the sole heirs of Atilla Gudgell, deceased, by her husband, Robert E. Gudgell, and the case turns upon the construction given to a deed, made on December 27, 1867, by Spencer H. Gregory and Elizabeth, his wife, conveying this and other land to said "Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband."
The cause was submitted upon an agreed statement of facts.
It is conceded that the common source of title was Spencer H. Gregory. Atilla Gudgell had four children by her husband, Robert E. Gudgell. Two of them, the plaintiff Emma B. Kane, and Mason Gudgell, were in being *688 at the time of the making of the deed from Spencer H. Gregory and wife to Atilla Gudgell. The two other children were born after the making of that deed. The two, subsequently born, were plaintiff Lizzie M. Wright, and Jessie Gudgell. Mason Gudgell and Jessie Gudgell both died without issue and unmarried, and before the death of either Atilla Gudgell or Robert E. Gudgell.
On January 20, 1869, Atilla Gudgell and her husband executed to Preston Anderson a general warranty deed to the land in controversy. On July 31, 1886, the plaintiff Emma B. Kane, then a single woman, executed a quit-claim deed to the land in controversy to one Jacob A. Roath. At that time, all four of the children of Atilla Gudgell, by her husband, Robert E. Gudgell, were living. It is conceded that the defendants, Lucile Roath and Ruth Roath, have succeeded to all the interests conveyed to Preston Anderson, and conveyed to Jacob Roath, by the deeds that have been mentioned, and that said defendants and their grantors have been in the continuous, open and notorious possession of the land since the time of the execution of the deed to Preston Anderson.
Robert E. Gudgell died January 12, 1905, and Atilla Gudgell died April 25, 1914. This suit was instituted on January 23, 1922. The plaintiff Emma B. Kane claimed an undivided one-fourth interest and plaintiff Lizzie M. Wright claimed an undivided one-half interest therein. They alleged that defendants, Lucile Roath and Ruth Roath, who are minors, each own an undivided one-eighth interest; and the plaintiffs, by their petition, in three counts, asked respectively for determination of title, for possession, and for partition of the land in accordance with the interests set up in the petition. The defendants, by answer to each of the several counts set up adverse possession, and the Statute of Limitations, and, in their answer to the third count, for partition, defendants also asked for partition, as between themselves.
The trial court adjudged that plaintiff Emma B. Kane was the owner of an undivided one-fourth interest; *689 that Lizzie M. Wright was owner of an undivided one-half interest, and that defendants Lucile Roath and Ruth Roath each owned an undivided one-eighth interest, and upon that basis the court entered a decree for a sale in partition.
The deed in question, omitting its description of the land, is as follows:
"This indenture made on the 27th day of December, A.D. one thousand eight hundred sixty-seven, by and between Spencer H. Gregory and Elizabeth B., his wife, of the County of Livingston, State of Missouri, as parties of the first part and Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband of the County of Livingston and State of Missouri, as party of the second part.
"Witnesseth: That the parties of the first part, for and in consideration of the sum of five hundred dollars to them paid by said party of the second part, the receipt whereof is hereby acknowledged have granted, bargained and sold, confirmed and conveyed by these presents, do grant, bargain and sell, confirm and convey unto the said party of the second part, and her heirs and assigns, the following described real estate, situated in the County of Livingston, State of Missouri, to-wit: . . .
"To have and to hold the same with all the rights and privileges and appurtenances thereto belonging or in any wise appertaining to the only proper use, benefit and behoof of Atilla Gudgell and her lawful heirs by said Robert Gudgell, her husband, to said party of the second part, to her heirs and assigns forever. The said parties of the first part hereby covenanting that they and their heirs, executors and administrators shall and will
"Warrant and defend the title to the said premises and every part thereof, unto the said party of the second part, her heirs and assigns forever, against the lawful claims and demands of all persons whomsoever." *690
The contention of counsel for defendant is that the deed did not create an estate tail, but that it conveyed the fee simple to Atilla Gudgell, or, that if the deed did not convey title in fee simple to Atilla Gudgell alone, it did convey an estate in fee simple to her and her two children then in being, as tenants in common. Counsel for plaintiffs rest their case upon the contention that the deed created an estate tail special under the common law, which the statute converted into a life estate in Atilla Gudgell, with remainder in fee simple in her lawful heirs by Robert E. Gudgell, living at the time of her death. If the foregoing claim of plaintiffs be correct it disposes of the case, and results in an affirmance of the judgment.
If the language of the deed created in the grantor what would, at common law, have been an estate tail special, then it is conceded that the statute converted it into an estate for life only, of Atilla Gudgell, with remainder in fee to her heirs begotten by her husband, Robert E. Gudgell.
There are, in this deed, words of inheritance and words which, by necessary implication, denote procreation. [Reed v. Lane,
We have carefully examined the cases cited by counsel for defendants under their contention that this deed did not create an estate in fee tail, but conveyed a fee simple title to Atilla Gudgell. In Adams v. Cary, 226 S.W. 833, the party of the second part was described as "Molly B. Adams and her bodily heirs." The words *692 "bodily heirs" were not again used in that deed. In that case, also, the deed was made in effecting the voluntary partition of land owned by the parties. The decision in that case in reality was founded upon the rule stated at page 834: "Deeds made by tenants in common to divide or partition their lands are not recognized as transferring title at all, but simply as separating the possession, and the title of each stands as it did before in the original title or rights of the party."
The facts existent in McDowell v. Brown,
In Tennison v. Walker, 190 S.W. 9, the words "bodily heirs and assigns" appeared in the granting clause and not elsewhere. Thehabendum and the covenanting clause were unrestricted in their terms. In that case the original deed was before the court for inspection. The decision appears to have turned in no small part upon what was shown by the inspection of the deed, and particularly what had been first written into the habendum and warranty clauses and then changed. It was said at page 12: "These written changes, when read in connection with the various other clauses of the deed, and harmonizing with them all, save the granting clause, leave but little, if any, doubt as to the intention of the grantor to convey the fee to his daughter." The decision there was expressly put upon the peculiar facts of that case, and the opinion, after viewing many authorities, lays great stress upon the effect which may be given to the habendum clause in the deed.
We see nothing in Rines v. Mansfield,
The deed in the instant case nowhere used the word "children" and what we have just quoted is not consistent with the alternative claim made for defendants that if the deed here did not convey the title in fee simple to Atilla Gudgell alone, it did not convey an estate in fee simple to her and her two children, then living as tenants in common. Certain cases are cited in support of the contention that Atilla Gudgell and her two children, who were in being at the time the deed was made, became tenants in common. Hamilton v. Pitcher,
The case of Fanning v. Doan is cited. In that case a quit-claim deed was made by Benajah Doan to "Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever." The maker of the deed, it was said, had taken title from the said John Doan, to be held "by him in trust for the use and benefit of the said John Doan, his wife and children and heirs by her." The deed was made after the death of John Doan, who is spoken of as "John, Sr." It was held that the words "her heirs by John Doan" should be treated as words of description instead of words of limitation, the word "heirs" being used in the sense of children. The situation of the parties was considered. It was held that the intent of the grantor in the quit-claim deed was not to create an estate tail, but to give to the grantees therein the whole estate to be held in the same manner as they would have held the lands, had the deed from John to Benajah never been made. There is here no such reason for holding that the word "heirs" means children.
Johnson v. Calvert,
Counsel for defendants urge that the deed is not one of gift, but that the consideration for the deed was paid by Atilla Gudgell, and was probably all the land was worth at that time. They argue that it should be presumed the intent of the grantor was to convey to her the fee without limitation. There is no evidence in the record as to the value of the land at that time, and no evidence as to the relation existing between the grantors and Atilla Gudgell and her husband. The only evidence as to the consideration is the recital in the deed. If Atilla Gudgell was a purchaser paying a full consideration for the land, it might be presumed that the grantor would and did make the deed to such grantee or grantees, and on such conditions, as between the grantees, as were desired by the purchaser. If Atilla Gudgell was the purchaser, for value, and desired to take the sole and absolute title, we can see no reason why the particular words of limitation here found should have been used, and reiterated; and if she desired her children then living should take with her as co-tenants in common, no reason *696 is seen for the use of those words in the deed. They are words of a particular import, written, and injected into the body of ordinary or general words used, and cannot be rejected.
The language used limited the inheritance to a class of heirs of the body of Atilla Gudgell, the first taker.
The judgment of the trial court is affirmed. Seddon, C., concurs.
Addendum
The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. Ragland, P.J., Graves and Atwood, JJ., concur;Woodson, J., absent.
