*1 MISSOURI, SUPREME COURT OF Kane v. Roath. con- basis for'the
The record does not afford a sufficient heading, assignment. Under sideration of this friearly Instructions,” follow “Defendant’s Refused eight paragraphs pages' printed matter successive separation or but otherwise subdivision without subject-matter. paragraphs numbered. are not We are unable to tell from the record whether whole there were one instruction, offered as whether separatе parts are certain offers of of it. There different single paragraphs they in- been which, if offered given, assume structions, should have been cannot we they offered; were so can the trial court of nor we convict separating good error in not from the bad. judg- As the no reversible errors the record discloses ment the trial court affirmed. ab- concur; Woodson,
Graves and Atwood, JJ., J., sent. Ap
EMMA KANE et B. al. v. LUCILE ROATH et al., pellants. One,
Division October 1925. CONVEYANCE: To 1. Married Woman and Lawful Heirs Named Special. conveying Husband: Estate Tail A deed land to “Atilla and her lawful heirs Robert E. her husband” special, law, tail created at common which the statute Atilla, á converted into life estate in with remainder in fee by Robert, in her lawful heirs the time of her death. Meaning by Subsequent 2. —--: -: Lawful Heirs: Restricted Words. The deed named “Atilla and her lawful heirs party part,” her husband” as “the the second conveyed, party part, lands said certain “to assigns.” habendum was “to have and to hold only proper use, benefit and behoof the> unto to the lawful heirs said Robert forever,” assigns party ¡part, to her heirs of the second part, “unto the said of the second was warranted the title TERM, Held, “lawful heirs” the words her heirs and forever.” granting re- habendum were not and in the used in the general the second “to said to heirs the words stricted assigns” Those other clauses. used in the her heirs and meaning general un- the clear and limited in their *2 words are by qualifying equivocal special E. heirs Robert “lawful words clauses, granting Gudgell” if so habendum used in the harmony brought and can be are into limited the clauses various repugnant duty given effect, courts to reconcile and it reasonably conflicting done. that can be of a deed when clauses Heirs: Tenants Married and Lawful -: -: Fee to Woman 3. by Gudgell in A lawful heirs Common. to “Atilla and her convey Gudgеll, in fee title husband” not her did Robert living, by simple then children Robert Atilla and her two be cannot “heirs” or “children” word tenants common. Gudgell.” by words heirs Robert -E. “lawful substituted body, by Gudgell” her mean heirs of heirs Robert “her lawful by bodily body only her the said as were heirs of heirs but such though, made there were time the deed was And husband. her, bodily predeceased heirs, and two such whom one such two executed, bodily deed was one of whom born after heirs were speсial, death, tail which created the deed before her died her, estate in and the re- converted into a life statute living bodily her said husband at the heirs in fee in mainder death. of her time --— n : Presumption That Fee Was Intended. It cannot -:
4. granting presumed named the deed' because Gudgell Robert E. hus- her lawful “Atilla and recited a valuable con- of the second band” part,” the second that'the inten- “|paid sideration Atilla, simple convey titlе to view the fee tion contrary. positive 203, 256, p. J., n. Deeds, Juris-Cyc. Corpus Section 18 C. References: 43; 217, 333, 261, 81; p. p. 258, n. p. 257, 79, 205, p. 73; n. Section n. Section 27; 23, p. 27; p. 332, 329, 267, n. Section n. 225, Section n. Section 937, Estates, 58, p. J., n. 97. 335, 21 Section p. C. n. Arch B. Livingston Court. —Son. Appeal Circuit from Judge. Davis, Affirmed. Ashby appellants. &
Davis
SUPREME COURT OF MISSOURI,
686
(1)
Spencer
The deed made from
Gregory
H.
wife to
her lawful heirs
Robert E.
did
create
an estate in fee tail,
conveyed
a fee
Gudgell.
title to Atilla
Adams
Cary,
v.
226 S. 'W.
McDowell
833;
v. Brown, 21
57;Mo.
v. Mansfield, 96
394;
Riñes
Mo.
Tennison v.
190
Walker,
(2)
S. W. 9.
If
the said deed did not
a fee sim
ple
to the said Atilla
then it
to her
and her
children then
a fee
simple estate as
tenants
common. Hamilton v.
Cunningham,
Pitcher,
Emma
and Mason
being
tenants
common,
Statute of
be
Limitation
*3
gan
day
January,
to run on the 6th
of
1869, when the
by
Gudgell
Gudgell
deed Atilla
made to
Anderson,
Preston
filed,
this action, when
Cunningham,
barred. Franklin v.
Scott J. respondents. KickUn for
- Gregory (1) Atilla from and wife to The deed Gudgell, and her lawful Robert special tail the com- husband, created estate under a life into law, which our statute converted mon simple in fee in with remainder estate Atilla Gudgell, living in lawful heirs Robert 311; 122 Utter v. Lane, v. Mo. time of her-death. Reed n Sidman, Cope, 24 329; 111. 122 v. 284; 170 Mo. Lehndorf Halsbury, pp. England, 246, 245-, E'arl of Laws of 1925. TEEM, 687 ' (2) parties The 450. use of words or 449, secs. plainly a deed,
make little in such as difference which this, conveyancer great drawn a without shows that was Eay App. experience. 10 321; v. Mo. Cranch, Garrett Humphries, 607; 161 W. Frame v. 164 Mo.- Wiltse, v. S. “assigns” (3) 336. The use of the “heirs assigns” enlarging of not have effect what does in be a life estate into an fee would otherwise simple. Man- 215; v. Mo. Davidson v. Keller, Chew 171 (4) v. Mo. 671. son, 608; Kenmuir, Bean may in a to for be resorted habendum disposition purpose ascertaining the of the re- appear vest even where all other clauses a mainder, this even under estate in the first taker, conveyancing. McC'ullock rules strictest common-law Walker, Tennison v. 190 S. W. 448; 111 Mo. Holmes, (5) make been to Had intention of the execution at the time and her two children question, their common, names tenants the deed certainly inserted have been would could have Tygard Y. 399; v. Mansfield, the deed. Riñes 990.W. Hartwell, S. plaintiffs, Kane and Emma-B. C. The
LINDSAY, right Wright, their to establish Lizzie M. sued forty of land possession acres interests undivided plaintiffs County. the sole heirs Livingston are Eobert E-. deceased, given upon construction case turns and the by Spencer H. December on made conveying this wife, Gregory Elizabeth, his *4 Gudgell her lawful heirs and said “Atilla other land her husband.” Eobert upon agreed statement The cause was submitted facts. source-of title the common is conceded that It Gudgell four children Gregory. Atilla Spencer H. Gudgell. them, the Two of Eobert be- were in plaintiff and Mason Kane, Emma B. SUPREME OF COURT MISSOURI, making Spencer the time of the of the deed from Gregory Gndgell. H. and wife to Atilla The two other making children were born after the of that deed. Thе subsequently plaintiff two, Wright, born, were Lizzie M. Gudgell. Gudgell and Jessie Gudgell Mason and Jessie both died without issue and unmarried, and before the Gudgell Gudgell. death either Atilla or Robert E. January On 20, 1869, and hus- general warranty band executed to Preston a .Anderson controversy. July deed to the land in On 31, 1886, the plaintiff single Emma B. a Kane, then executed woman, quit-claim controversy deed to the land to one Jacob A. Roath.' At time, that all four of the children of Atilla Gudgell, by her husbаnd, Robert E. were liv- ing. It conceded that Lucile defendants, Roath Ruth Roath, have succeeded to all the interests con- veyed to Preston Anderson, to Jacob Roath, the deeds that have been mentioned, grantors said defendants their have been in the con- open possession tinuous, and notorious of the land since the time of the execution the deed to Pleston Ander- son. January 12, died 1905, April died This suit instituted on plaintiff
January 1922. The Emma B. Kane claimed plaintiff one-fourth interest an undivided Lizzie M. Wright claimed one-half an undivided interest therein. alleg’ed They defendants, Lucile Roath Ruth minors, who each own an Roath, are undivided one- plaintiffs, by eighth petition, their interest; respectively three asked for counts, determination of partition possession, title, for and for the land in ac- petition. up set cordance with interests of the several defendants, answer eаch counts set up possession, Statute adverse Limitations, partition, answer and, count, in their third de- partition, asked as between fendants also themselves. plaintiff adjudg*ed that Emma court B. The trial ‘ an undivided one-fourth interest; Kane was the owner of *5 APRIL TERiM, Wright that Lizzie M. was owner of an undivided one- interest, half and that defendants Lucile Roath and Ruth one-eighth each owned an undivided Roath interest, and upon that basis the court entered a deсree for a sale in partition. question, omitting description
The deed in its of the follows: land, ‘‘ day This indenture made on the 27th of December, eight sixty-seven, by D. one A. thousand hundred Spencer Gregory H. between and Elizabeth B., his wife, County Livingston, par- of the of State of Missouri, as part ties and Atilla of first and her lawful County heirs her husband of the Livingston party and State of Missouri, part. parties part, That “Witnesseth: of the first consideration of the sum of five hundred dollars рaid party part, to them said of the second the re- ceipt hereby acknowledged granted, whereof is bar- gained conveyed by pres- confirmed and sold, these bargain grant, confirm sell, do ents, unto party part, of the second and her said heirs and assigns, following described real estate, situated in County Livingston, State Missouri, to- . wit: . . rights have and to hold the same with all
“To appurtenances privileges belonging thereto only appertaining proper any use, wise benefit lawful said and behoof Gudgell, Robert said sec- assigns part, forever. her heirs and The said ond part hereby covenanting they parties of the first and administrators shall and heirs, executors and their will premises and defend the title to
“Warrant every sec- thereof, unto the said against the law- forever, ond heirs and persons whomsoever.” and demands of all ful claims Sup. —44. MISSOURI, OP COURT SUPREME Kane Roath. counsel defendant is that contention of an estate hut that it tail, create
deed did if or, the deed did *6 simple convey alone, in to Atilla fee simple in her and an estate her two did being, in as tenants common. in Counsel children then upon plaintiffs the their case contention that the for rest special under common law, an estate tail the deed created in converted into life estate statute which the Gudgell, her lawful remainder in fee in heirs with Gudgell, at the time of her death. If by Robert E. disposes plaintiffs foregoing be correct it claim of the judgment. in affirmance of the results an and case, of the grantor language in created If the spe- an law, common have been estate tail would, at what that the statute converted it into then it is conceded cial, only, of Atilla remainder life with by begotten her husband, Robert E. her heirs in fee to Gudgell. of inheritance deed, in this words and are,
There necessary implication, procre which, denote words 311.] The words used Lane, v. [Reed ation. only -body and heirs of denote body her who were such husband of her those heirs gath Gudgell. to be The intent of the deed Is Robert E. instrument, and effect must be the entire from ered possible in given if that be its words and clauses to all operative and effective made so that each is reason, 424.] Ryland, purpose. In this [Eckle v. some being part party is describеd as of the deed the second Robert E. lawful heirs Gud “Atilla her expressed being grant gell, her husband.” party her heirs and the second “the said only proper assigns,” runs “to the the hdbendmm her lawful of Atilla benefit behoof use, husband, to said said Robert heirs assigns part, party for her heirs and second of the warranty “unto the said ever.” The runs TERM, v. Kane Roatli. grant heirs forever.” The
ing warranty clause and the covenant follow the ordi warranty nary forms used deeds. Thеse clauses, standing parts alone, unaffected the other express conveyance grantee, of the fee to the part. of the second But the word “heirs” used qualified by in these be held clauses, must to be em phatic expressions premises, used in the the hta grant bendum clause. The word “heirs,” used warranty, in the clause, and covenant of in their ref grantee, erence must be to mean held the “lawful Gudgell, by said Atilla Gudgell.” repug Otherwise, clauses mentioned are general meaning but if nant, word be limited its special qualifying used, the various brought harmony given clauses are into all can be Ryland, It l. effect. c. 441: Eckle “The *7 interpretation best mode of is to reconcile one clause straining with another where that can done be without hairspun the words theories or over nice refinement.” specific employed We hold that the words in this deed in premises, the and in habendum clause must the be held to explain, qualify general limit the words used the thereby designate to the clauses, other of character granted. [Utter Sidman, v. 170 Mo. 284; the estate 292.] a v. Trail, Owen Mo. This is not case wherein, the as in Owen v. the scrivener used words “heirs Trail, whereby body,” argued of her it could be that he ‘ ‘ knowledge attempting his of the law to air us ” ‘bodily when ‘heirs’ but, the words heirs’ he meant equally other and cre clear, in this case he used special bodily ating heirs. class carefully cited coun- have examined the cases We that this deed sel under their contention for defendants tail, in fee but a fee create an not did simple Cary, Gudgell. v. 226 In Adams title to Atilla was described the 833, S. the W. bodily “Molly The words heirs.” B. as Adams MISSOUBI, COUBT OF SUPBEME Kane Roath. again
“bodily In were not used in that deed. heirs” effecting the the was made volun also, deed case, parties. partition tary the land owned The de upon reality ‘ in that case in was founded the cision page 834: ‘Deeds made tenants in com rule stated at partition recognized their lands mon to divide or are simply transferring separating all, at but as possession, title of each it. before and the stands as did original rights party.” title or in the Brown, in McDowell v. The facts existent are so different from those this cited, another case bearing persuasive no direct force that we can see case applicable to this case. therein, “bod Walker, S. W. the words In Tennison v. appeared assigns” granting ily in the clause heirs and covenanting and the The habendum and not elsewhere. their terms. In' that unrestricted in case were inspection. original before the court for part upon appears turned no small decision inspection par deed, what was shown ticularly into the what had been first written habendum changed. warranty and then It was said clauses changes, page when read in con 12: “These written various other clauses of the nection with harmonizing granting leave clause, all, them save with grantor any, to the intention of if doubt little, daughter.” The decision there his peculiar upon expressly put case, of that facts many lays viewing opinion, authorities, after and the given upon may great effect which stress deed. habendumi clause *8 nothing Mansfield, in Rines v. seeWe regard being supports counsel, contention of which in that case and the between facts to difference granting that case the clause of in case. In facts this “ assigns,” ‘M’ children and her while the deed was to “ warranty are to her ‘M,’ clauses the habeXttdmnand page assigns.” 399: It was said “Con- heirs and TERM, Vol.
Kane v. Roath.. sidering' clauses in the in deed, these inconsistent light fact disclosed the evidence that Eliza- eight it all of children when еxecuted, beth had was in have been the deed if it whose names inserted could they take should as tenants in com- was intended that light mother, and in the of the fact mon that she with clause, to have and habendum to hold the was, in the jus- premises to her and to her we are heirs, grant- concluding' ‘children’ in that in the tified the word ’’ in the of the heirs. was sense used in case nowhere used the word the instant The deed just quoted is consist “children” and what not we made that alternative claim for defendants ent with the simple convey in the title to if the deed did not here convey it not an estate in fee did alone, living ten her then children, to two support of are cited ants in common. Certain cases ’G-udgell children, two the.contention that Atilla being was be made, at the time deed who weré Pitcher, Hamilton v. Mo. came common. tenants upon. grant Mar to In that ease the was 334, is relied garet was her сhildren.” The habendum' Pitcher “and ‘‘ their the said the second them, held the deed forever.” It esse, and that as to her her children void common. This as tenants in children then took gran theory were made her children was held on the uncertainty, they then no since were tees, and there was answering descrip persons being, to that and were Cunningham, cited. tion. Franklin a title bond construction of That case involved reforming purpose administrator. made agreed bond had maker of the It was that the shown convey to “Missouri in the land all of his title legal Fkanklin.” G. heirs of Robert Franklin administrator’s held tha-t, Under that the Missouri Franklin, G. Robert made, after death so as to reformed, E. Franklin should be alone, *9 SUPREME OF MISSOURI, COURT the estate to E. Missouri Franklin and the heirs of Robert deceased, G Ffanklin, common, . the as tenants effect of the deed, reformed, when so vest title in was to such tenants of the The common, as date thе deed. decision so reached no for rule the construc establishes tion of the deed the instant case. Fanning The case of v. Doan is cited. In that case
a, quit-claim Benajah deed made was Doan to “Sarah A. Doan John Doan, their heirs and as- signs forever.” maker The it said, was “by had taken title from the said John be Doan, to held him in trust use benefit John Doan, his wife- and children her.” and heirs deed was made after death of Doan, John who is spoken of as Sr.” “John, It held was “her heirs John Doan” should treated as words description 'limitation, instead of words of the word being “heirs” in the used sense of children. situa- parties tion of the was considered. It was held grantor quit-claim intent in the not to was grantees give tail, create but to 'to estate therein they the whole be held in the manner same would the lands, held had the deed from John to Benajah never been made. no There here such rea- holding son for that the word “heirs” means children. upon by Johnson v. Calvert, is relied counsel defendants. In that the" case part “Mary second in the deed was described as grant Johnson, wife Thomas Johnson,” and the “unto said of the heirs of Mary said Thomas Johnson forever.” living' Johnson and Thomas Johnson were both children at the time the deed made. In opinion written J., said that the word Brown, “heirs” should be construed to mean children, Lamm, J., concurred in that view. Walker Faris Graves, only. concurred in the JJ., result and Woodson, Bond opinion by Walker, dissented. In the concurred in TERM,
Kane Roatiti. language of the it was said that the Graves Paris, properly “heirs” deed was not such that word could meaning children, *10 authorize so as to he construed as the use a construction of the as would such deed follow be- distinction of “children.” There a vital the word is the the deed the words used that and tween Mary and John- case at bar. it is Thomas There, true, living, as and wife and children son were husband Gudgell Gudgell were is and it true that Atilla the had two children wife, husband conveyance but, in case the made; time the deed was Mary Thomas of and to the heirs was to Johnson conveyance Gudgell to Atilla here, while the Johnson, hus- “her lawful said Robert her heirs expression, band.” twice in this cannot This used body anything of be held to mean else heirs of than body, only all Atilla and not of her body husband. such heirs as were heirs of urge is not one Counsel for defendants that the deed paid gift, for was the consideration the deed but that probably all the land was pre- argue They worth at time. that it should be grantor convey to her the intent to sumed in the rec- without limitation. There is no evidence and no evi- ord to the value land at that time, grantors existing dence as to relation between only evidence The husband. in the deed. as to the is the recital If Atilla consideration purchaser paying* a full consideration grantor presumed might would that the land, grantee grantees, and or and did make the deed to such grantees, on were de- such as between the conditions, pur- purchaser. was the sired If Atilla and ab- to take the sole chaser, value, desired why particular title, solute can see no reason we been used, words of limitation found should here liv- if hеr children then reiterated; and she desired rea- common, take no should with her as co-tenants MISSOURI, COURT OP SUPREME Toomey v. Wells. They is seen for
son the nse of weirds the deed. those particular import, injected are words of a written, ordinary general body into the words used, and rejected. cannot be language used limited the inheritance to a class body G-udgell,
of heirs of Atilla the first taker. judgment trial court is affirmed. Seddon, G., concurs. opinion PER forеgoing CURIAM:—The Lindsay, adopted opinion Ragland,
C., is as the of the court. P. J., Graves and Ativood, JJ., concur; absent. Woodson, J., *11 KATHERINE TOOMEY ROLLA Receiver WELLS, Railways Company, Appellant. United One,
Division October 1925. Vigilant-Watch. Relaxing 1. NEGLIGENCE: Ordinance: Care Due Pas- sengers: Louis, Vigilant-Watch Intendment. Ordinance St. requiring keep motormap vigilant a of a street car a watch for to persons ap- moving it, all on the track or towards and on the first pearance danger persons stop to such the car in the shortest space possible, higher degree time and exacts a care on the railway company imposed by. of the street than the care com- law, purpose law-making body mon and the and intent enacting considered, object, humani- and that like the must injury rule, safeguard protect tarian was the better from persons especially approaching on childrеn on or foot track; any abrogate safe- it does not wise lessen safety guards passengers the law throws entrust their around who carrier, duty highest degree of to the whose it is to exercise the practicable passenger’s safety. obey In effort care an always Vigilant-Watch Ordinance, regard must be had for the due stopped safety passengers on the car which is to avoid strik- pedestrian. - n : carrier, Jury. -: -: Whether Question Vigilant-Watch Ordinance, attempt obey exercised due