Kane v. RoathKane v. Roath
2. —--: -: Lawful Heirs: Meaning Restricted by Subsequent Words. The deed named “Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband” as “the party of the second part,” and conveyed, certain lands “to said party of the second part, and her heirs and assigns.” The habendum was “to have and to hold unto the only proper use, benefit and behoof of Atilla Gudgell and her lawful heirs by said Robert E. Gudgell, her husband, to the said party of the second part, to her heirs and assigns forever,” and the title was warranted “unto the said party of the second part,
3. —--: -: Fee to Married Woman and Lawful Heirs: Tenants in Common. A deed to “Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband” did not convey the title in fee simple to Atilla and her two children by Robert then living, as tenants in common. The word “heirs” or “children” cannot be substituted for “lawful heirs by Robert E. Gudgell.” The words “her lawful heirs by Robert E. Gudgell” mean heirs of her body, but only such bodily heirs as were heirs of her body by the said husband. And though, at the time the deed was made there were two such bodily heirs, one of whom predeceased her, and two such bodily heirs were born after the deed was executed, one of whom died before her death, the deed created an estate tail speciаl, which by the statute was converted into a life estate in her, and the remainder in fee in her bodily heirs by her said husband living at the time of her death.
4. —--: -: Presumption That Fee Was Intended. It cannot be presumed that because the deed in the granting clause named “Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband” as the party of the second part, and recited a valuable consideration “paid by said party of the second part,” that the intention was tо convey the fee simple title to Atilla, in view of the positive words to the contrary.
Corpus Juris-Cyc. References: Deeds, 18 C. J., Section 203, p. 256, n. 73; Section 205, p. 257, n. 79, p. 258, n. 81; Section 217, p. 261, n. 43; Section 225, p. 267, n. 27; Section 329, p. 332, n. 23, p. 333, n. 27; Section 333, p. 335, n. 41. Estates, 21 C. J., Section 58, p. 937, n. 97.
AFFIRMED.
Davis & Ashby for appellants.
(1) The deed made from Spencer H. Gregory and wife to Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband, did not create an estate in fee tail, but conveyed a fee simple title to Atilla Gudgell. Adams v. Cary, 226 S. W. 833; McDowell v. Brown, 21 Mo. 57;
Scott J. Miller, Royer Stone Miller and Thos. H. Hicklin for respondents.
(1) The deed from Gregory and wife to Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband, created an estate tail special under the common law, which was by our 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. Reed v. Lane, 122 Mo. 311; Utter v. Sidman, 170 Mo. 284; Lehndorf v. Cope, 122 Ill. 329; 24 Laws of England, by Earl of Halsbury, pp. 245, 246,
LINDSAY, C.—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 be
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 succеeded 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. Kanе 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;
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 Rоbert 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 cоnvey 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.”
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, 122 Mo. 311.] The words used denote heirs of the body of Atilla Gudgell, and only those heirs of her body who were such by her husband Robert E. Gudgell. The intent of the deed is to be gathered from thе entire instrument, and effect must be given to all its words and clauses if that be possible in reason, so that each is made operative and effective for some purpose. [Eckle v. Ryland, 256 Mo. 424.] In this deed the party of the second part is described as being “Atilla Gudgell and her lawful heirs by Robert E. Gudgell, her husband.” The grant is expressed as being to “the said party of the second part and her heirs and assigns,” and the habendum runs “to the only proper usе, benefit and behoof of Atilla Gudgell and her lawful heirs by said Robert E. Gudgell, her husband, to said party of the second part, to her heirs and assigns forever.” The warranty runs “unto the said party of the
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
The facts existent in McDowell v. Brown, 21 Mo. 57, another case cited, are so different from those in this case that we can see no direct bearing or persuasive force therein, applicable to this case.
In Tennison v. Walker, 190 S. W. 9, the words “bodily heirs and assigns” appeared in the granting clause and not elsewhere. The habendum 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 fеe 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, 96 Mo. 394, which supports the contention of counsel, regard being had to the difference between facts in that case and the facts in this case. In that case the granting clause of the deed was to “‘M’ her children and assigns,” while the habendum and warranty clauses are to “‘M,’ her heirs and assigns.” It was said at page 399: “Con
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, 53 Mo. 334, is relied upon. In that case the grant was to Margaret Pitcher “and her children.” The habendum was “to them, the said party of the second part, and to thеir heirs and assigns forever.” It was held that the deed was not void as to her or her children in esse, and that her children then living took as tenants in common. This was held on the theory that her children were made grantees, and there was no uncertainty, since they were then in being, and were the persons answering to that description. Franklin v. Cunningham, 187 Mo. 184, is cited. That case involved construction of a title bond for the purpose of reforming a deed made by an administrator. It was shown that the maker of the title bond had agreed to convey all of his title in the land to “Missouri E. Franklin and the legal heirs of Robert G. Franklin.” Under that, it was held that the administrator‘s deed, made, after the death of Robert G. Franklin, to Missouri E. Franklin alone, should be reformed, so as to convey
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, 260 Mo. 442, is relied upon by counsel for defendants. In that case the party of the second part in the deed was described as “Mary E. Johnson, wife of Thomas Johnson,” and the grant was “unto said party of the second part and the heirs of the said Thomas Johnson and assigns forever.” Mary E. Johnson and Thomas Johnson were both living and had children living at the time the deed was made. In the opinion written by
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 purchasеr. 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 rea
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.
PER CURIAM:—The foregoing opinion by