*1 Cooley and underpass question. tion of is ordered. tbe It so Bohling, CC., concur. C., foregoing opinion by
PER CURIAM: Tbe Westhues, adopted opinion judges All tbe tbe court. concur. Henry M. Keller, Fred Eggimann, Keller,
William Mathilde A. O. Hager, Edwin Keller, Keller, Christine Arthur Keller, Rau, Miller, Helena Ella Julius Otto Magdalena Arnold G. Blattner, Schrader, Anna Mary Minor, Mildred Marie Owen W. Crites, Schwab, Crites, Virginia Minor, Minor, W. B. Crites, Crites, Dott Friend, Appellants, Keller, Appellant. Their Next Robert 92 W. 157. Two, March 1936.
Division *2 Mudd, Limbaugh & Habenicht Bush H. Foristel, Blair William Keller et al. Keller. & Dalton for Robert Spradling
Dearmont, *3 BOHLING, and for C.- Plaintiffs sue twenty-seven Cape hundred and of real estate situate acres cross-appeals Girardeau County, Missouri. case is here on after parties plaintiffs unsuccessful motions and defendant for new trial judgment. arrest of and,
John with his fee, G. Keller real estate owned the February 1887, warranty March usual form recorded page 157, county, in book 18 Becorder’s con- office (omitting veyed real his son J. Keller. Said deed conclusion) reads: D., twenty day February, A. Indenture,'made third “This on the *4 Eighty Eight by One and between Thousand Hundred and Seven George Augusta Keller, of John Keller and husband and County Missouri, the first Cape party of Girardeau in the State of of " part, George Cape Girardeau in the County and J. Keller of the of part: Missouri, party of of the second State part in consideration “Witnesseth, party that the said of the first thousand-dollars; paid by party to them said of three of sum hereby acknowledged, receipt of which is do part, the of the second bargain confirm, grant, sell, convey unto presents these following assigns, the part, his heirs and party of the second the said lying, being lots, parcels land, of and situate tracts or described to-wit: Missouri, Girardeau and State of county Cape of hereby it is “and description the real of follows estate] [Here parties by herein named that agreed understood to and expressly George Keller should without children J. die the said that ease revert and his heirs and real estate shall to his described above father dispose George shall not sell said real Keller or J. that the said of estate without obtaining the consent party part first of of first (Italics ours.) herein named. ‘‘ To have aucl to premises hold the aforesaid, with all singular rights, privileges, appurtenances belong- and immunities thereto ing, or any wise appertaining, party unto the said of the second part, and unto his heirs and assigns, forever; party the said of part first hereby covenanting- they lawfully that are seized of an in- defeasible estate in fee in premises herein conveyed; they that good right convey have same; premises the said are free any and clear of incumbrance done or suffered them or those under they claim; whom they and that will warrant and defend the title to premises the said unto the said of part, the second and unto his heirs assigns, forever, lawful claims and demands of persons all whomsoever.” G-.Keller, grantor,
John August 6,1888, leaving died George said J. Keller, grantee, Keller, John H. Keller, Keller, T. Louis Julius Otto August ~W. Mary Schwab, Mrs. Anna Blattner Mrs. his surviving children, only as his sole and heirs. On November 20, exception with the of said Louis T. (the all of said children joining) wives of those Keller, by quitclaim married of said John G. deed, form, pages usual June in book at recorded County, conveyed of Cape recorder’s office Girardeau George Keller, said real estate to said J. for the recited consideration ‘‘ ’’ dollar we bear out brother. And and the love and affection (their May joining), wives with the all of said children deed) joined quitclaim exception August (who in said W. Keller warranty deed, in usual form but not Keller, by and said Louis T. George acknowledged recorded, conveyed real to said or Dollars.” In each of J. Keller for recited consideration of “Ten description immediately after of said said deeds there was inserted relinquishment “This is made following: deed real estate premises above de- title, claim interest right, or ail may inherit parties scribed have which the said first reversionary reason through John G. Keller father February, conveyance day the 23rd clause in dated a'certain Girardeau, County, Cape in the recorder’s and recorded officeof 157.” Mo., page in record booh 11, 1929, without children. November J. Keller died testate own,” and, my any children of “I have never had His will recites estate, by 5 of his Article disposing portions after of certain “I involved, as follows: here will, disposed of the real estate he *5 rest, and remainder bequeath all the residue give, hereby devise and estate, mixed, situated, whereof wheresoever my real, personal and of may I be interested in which may possessed, or or I be seized entitled, unto may I manner death, my or in which time of Robert and share alike Keller, Keller and share Veronica ’’ absolutely. Eggi- parties litigation The Mathilde Keller, to this are: William mann, Keller, Henry M. Christine Keller, Keller, Fred A. Arthur O. Hager Keller, H. now (the and Robert of said John Keller children Keller, deceased); K. Rau, (the Edwin A. Ella Miller children Helena Magdalena deceased); Keller, of said Arnold Keller, Louis T. G. now deceased) (the ; August Keller, Schrader Owen children W. now of (the W. Crites, Virginia minor Mildred and Dott Marie Crites Crites August daughter children K. Crites, deceased, of Selma now of said Keller); and said Mary W. Blattner said Anna and said Schwab aforesaid Keller. parties plaintiff except Julius All are Otto Keller, by Robert next friend appear defendant. The said minors B'. Crites, W. their father. petition, except plaintiffs appear
The of for the fact that some friend, by next is in Defendant’s answer to conventional form. ejectment and with- possession count in in defendant admitted allegations in holding plaintiffs, denied the other possession of from of estoppel part cer- petition, pleaded said of and on count said war- plaintiffs quitclaim and tain reason the execution of ranty partition denied the deeds. to count Defendant’s answer allegations petition for further defense in said of said and count the execution pleaded estoppel plaintiffs on reason of warranty alleged possession quitclaim deeds, and and exclusive wife. Keller, his The and Veronica ownership in the defendant jury being court, Trial to the replication general denial. was was a given. waived, law or no declarations of were asked judgment The trial court for defendant rendered plaintiffs ejectment; judgment parti- all for the count simple fee tion, finding the owner in defendant Robert Keller to be ques- of an interest real estate undivided six-sevenths in and to Miller, K. Ella tion, Keller, A. Helen Rau and Edwin Keller, only deceased, Louis T. owner as the sole and heirs of each one-twenty-first It real estate. interest in and to the of an undivided being not be parti- that the real estate could parties conceded purpose tioned was ordered for bind, the same sold defendant, Rau Edwin Helena between Robert Miller, plaintiffs. Ella K. February proper construction deed importance controlling John G. J. Keller is of Keller With the solution the fundamental issue review. presented exception portion appearing italics, deed simple grantee; and defendant convey the purports fee title conveyed George simple J. Keller. title absolute contends a fee partition. correct; If not maintain
737 and wills is importance Of in of deeds basic the construction con rule, this other rules are parties; the intention of the and 165 sidered aids. S. W. Ryland, v. [Eckle 288, 293(1), 332 1038(4); Long Co., Union Mo. v. St. Louis Trust early of the 1071, 1073(1), S. One and 1076(4).] W. leading Sidman, 284, 293, 294, cases on Utter v. Mo. this issue is case, speaking intricacies, pitfalls That of the 705. necessitating confronting conveyancers of olden times the obstacles parts specific confinement to each the several a deed the function parts of the instrument were assigned, thereto states: “The several given the important controlling meaning, place the in an meaning expressed instrument where the of the testator was to be was parts of gravest importance.” [Next, the a considered of the formal reddendum, habendum, tenendu/m, premises, are deed mentioned—the conditions, warranty, provision “No covenants and conclusion.] general province of another. The rule impinge was allowed to on the deed, and' that ‘if there the first words repugnancy, was be a rule, . The will, prevail.’ words . . modern last in a shall the prevails State, simpler which and much more calculated this is much grantor, carry grantor. The intention the out the wishes the pole instrument, is now the gathered as four corners of anywhere expressed That intention be star of construction. plainer better, words, simpler and instrument, and in in what will enforce it no matter the court impart it,
that will habendum In that ease the it is found.” instrument of the although other her-bodily assigns,” heirs and grantee “and simple conveying a fee form in the usual provisions of the deed were n to-wit: explain granted, estate was held to title. The hab.endum bodily grantee’s heirs. with remainder grantee, estate in the life distinc controlling the technical giving effect-to Among not the cases effectuating the intent parts a deed and formal tions between some contravention grantor, practicable and when Co., supra; Union Trust Long St. Louis law, v. positive rule of are: 691, 219 S. Harvey, 281 Mo. supra; Welsh v. Hyland, Eckle v. 258 S. 292, 300(1), W. Trail, 302 v. 898(1); Owen 897,W. 40(1). 690, 276 Roath, Mo. v. 700(1) ; Kane are not deed discussion under provisions think the We provisions meaning, and that of doubful obscure, uncertain intent of the brought harmony and effectuate into can thereof grantee the intent of the deed grantor as disclosed hereby expressly phrase “it is The and conduct. his acts disclosed places the parties herein named” by to and understood agreed (without giving consideration to portion italicized form Lemmon v. printed a blank inserted it was fact that apparent ) 105(1) parity, W. Lemmon, 484, 492(2), “that in case that least, provisions. provisions with its other de- without children the above J. Keller should die expresses, father his heirs” scribed real shall revert his grantor As has apt words, reversion heirs. been Archer, Loekney Pauk, Collier v. indicated in other cases [Gannon Campbell, provisions here under considera- infra], the effect of *7 upon exist for elaboration so well settled no reason tion has been adjudicated cases. to be found the discussions banc), 1162, 81 67 L. R. Albright (en 238, 183 Mo. S. W. Gannon v. (en Am. 200 Mo. 471, banc), Gannon v. Pauk Rep. 105 St. 97, testator, J. will. The 471, 98 W. treat of the same Michael 75, S. will of his devised certain real estate to Gannon, the fourth clause Gannon, Joseph E. Gannon and Jr., and unto his sons “Michael J. “It assigns provided: Said their forever.’’ clause heirs and .further issue, then my . . . should either of them die without is will that assigns take, part own and have survivor, his heirs dying. event both hereby bequeathed so And portion to the one my issue, my it is will leaving any then without should die like and like.” surviving property shall have such [except heirs one] court concluded Mo. 247, 81 W. l. c. The l. c. S. Mo. [183 1163.] [183 then, . up, we hold . . 264, 81 c. : “To1 sum l. c. S. W. l. 1168] living issue dying mean without issue’ the words ‘die without a fail Joseph, mean definite and therefore death of Michael and 1929, Ann., p. S. Mo. 3109, R. Stat. . . of issue . ure Sec. [See of the will the said and, said fourth clause finally, that 1937], upon dying their subject defeated simple to be took fee two sons a leaving children, death, both died living and as at their without issue simple fee contingency which their herein, upon happen, can and their and never happened be defeated never conveyed warranty absolute, deeds became estate fee cases to like effect simple title.” Other grantors fee defendants’ 237; 233, 54 W. Brown 503, S. 489, 152 Drumtra, Walton v. are: 499(3) ; 497, Lockney v. W. 458(2), 138 S. 449, Tuschoff, Mo. v. Archer, 383, 258 Mo. 1174; v. Collier (Mo.), 189 S. W. Campbell (Mo.), Dodge Hall 512; v. 390, 167 S. W. 288, 293(1), Co., Union Trust Louis
586(2) ; Long v. St. Tuschoff, (so supra far 1073(1). v. as In Brown (2d) 1071, W. of issue one concerned), there was instant issue failure vest in the survivor under was held to devisees, fee two (Louie M.) should or G. die in case either reading “and provision it all.” entitled to shall be the other C., heirs, Cooley, leaving no Sturgis, C., Dodge Co., supra, Union Trust Long v. Louis St. cases. the earlier supra, review Hall, not J. Keller shall the said reading “and clause The dispose sell or of said obtaining real without first the consent named,” think, first herein we further re- stricted rather enlarged conveyed. than the title Under the fore- going authorities only qualified base or passed fee under the deed. Any conveyance effective simple during of the fee title the lifetime grantee conveyance called for a “party subscribed part.” first p. R. S. Ann., Mo. Stat. The [Sec. 1866.] clause is consistent conveyed with grantee; the title and no occasion exists to possible discuss its further effect in the instant case.
As by defendant, contended the fact that the recited a consideration is considered, to be but does itself rule the issue. v. Kice, 624(1); S. W. Tennison [Wood (Mo.), Walker v. Sidman, deeds Utter of the other eases, supra, some recited a consideration. This ais deed from father to his son. No doubt the limitations written into the into consideration; deed entered a determination of and, the recited if so, it was but natural father for the to have in mind all of his chil grantee. interposed dren—the others upon as well The limitations grantee’s “expressly agreed title are stated to be and under *8 ’’; express the the stood words used to limitations have a well defined meaning; grantee subject the accepted the deed to the conditions there forth; mutilating by warranted in the in set and a court is not deed rejecting grant. Roath, the to Kane v. conditions attached the [See 39, 42(4).] 276 S. W. therefore, George John Keller
We, hold the deed from G-. to qualified fee, passed only upon or determinable the J. Keller a base Keller, here, George subject, J. so far as material death of said George J. Keller death of said without defeasance the event of the heirs, his children, with the G. Keller and reversion in said the John children J. Keller said upon the death of without and said of said John G. Keller. to the heirs real estate reverted complete accord with the the deed is construction of The above 20, 1888, quitclaim November grantee’s securing deed of conveying reversionary title warranty May of Keller; interpreted grantee for if had G. heirs of John of certain was no the defendant there need as now contended the deed warranty deed, nor of statement in quitclaim securing said or children. without that he died will his plain all was filed on behalf of of the new trial A motion for judg we asked to render However, upon appeal, are plaintiffs’ tiffs. Keller, Rau and Ella K. A. Helena favor Edward only ment only heir Keller, deceased, of John G. T. of Louis children Miller, sign quitclaim warranty or either said grantor, who did not Keller, reversionary convey whatever in deeds effect said deed. The might have had in and the real estate grantors therein terest by plaintiffs argument printed is conceded in their here. Inlow [See Herren, 893, 895(3).] Defendant en S. W. judgment against plaintiffs, possibly, except, all titled to a Ella Miller. Edwin Helena Rau and K. Keller
George J. as one of the heirs of John G. and as conveying grantee quitclaim warranty in the aforesaid deeds John reversionary interest of five the seven heirs G. Keller, acquired simple six-sevenths fee interest an undivided controversy; last will testament devised real estate in in said “unto Robert Keller and Veronica said interest real estate alike, absolutely.” share and Veronica Keller Keller, his share litigation; plaintiffs and defendant contends is not to this a making said Veronica not maintain or without litigant. Keller party operative alike” in clause phrase “share share (not Keller, created an devise to Robert Keller and Veronica entirety joint tenancy) tenancy common. 448, 449(1) 387, 392(1), Wilhite,
Wilhite states: use of the words ‘share share “There is no doubt but that the granting operative parts deed, if alike’ inserted tenancy habendum, have created common. clause or in the would used, inconsistent, properly when with existence The words are entirety.” also, tenancy by [See, Peters joint tenancy of a aor 426(1); 609, 617(1), (en banc), 312 Mo. v. Sehachner 77, p. 560, *9 K. Miller in and Ella Helena Rau Edward terests of any ejectment ignores of co- relation count in estate. Plaintiffs’ real to plaintiffs are entitled upon theory proceeds tenancy and answer premises. Defendant’s to this of the whole possession of the cotenancy, ignores any “admits relation of also petition of count real estate mentioned and de of the possession inis that defendant possession from withholds thereof therein; admits he scribed right, interest in have no title or alleges plaintiffs plaintiffs” the ouster defendant Thus, answer admits estate. real Roberts, 543; Falconer v. 24 Mo. Laik, v. Peterson [See case, the main controverted issue instant as leaving, in the ; 574, 578] right possession, which turns of plaintiffs’ count ejectment in to the real estate. and defendant the titles upon Surghnor, 526(4), 1010(4).] v. [Jordan Notwithstanding must pleadings, possession demand for plaintiffs’ rights be in as as a tenant construed a demand in with their accord common. Roberts, 88 Mo. l. c. [Falconer 579.] By Section 1368, Revised 1929 (Mo. Statutes Ann., Stat. p. ejectment 1587), proceedings brought “shall against be person possession premises of the claimed.” Section 701, Revised Statutes (Mo. Ann., p. provides Stat. 910), “any person may a de be fendant who has or an controversy claims interest adverse to plaintiff, necessary complete or who is a party to a determination question or settlement of the involved therein. And in to actions re . possession any cover claiming real estate . . person or a title right possession may party the real made a plaintiff or defendant, as the case require, any By such action.” section (Mo. Revised Ann., Statutes p. 1595), Stat. tenant ejectment against an common, required action his cotenant, is actually show “that defendant or did him, ousted some act amount ing right to a total denial of his as such cotenant.” Limiting this re view presented by to the controverted issue pleadings eject ment proceeding and the evidence within issue, adduced such we are opinion, statutory of our provisions bearing view on the parties litigant, that indispensable Veronica Keller was an party not ejectment plaintiffs’ count failure to make her jurisdiction does not reach to the subject-matter, court over the or statement of facts sufficient constitute a cause action against although issue, [See, ruling defendant. not ex rel. this State Staed, Ejectment possessory is a case, action, sounding upon tort, and in the instant founded trespass withholding from ousting possession committed by rights plaintiffs. The common inter issue between tenants in involved plaintiff If is several prove sese. unable to that one cotenant deny totally did not or actually possession, oust him cotenants rights supra, cotenant, entitled, as a he not under Section one of several to recover in such cotenant. Because necessarily dispossess others, another or it does follow cotenants opposing and are possession that all cotenants in acted in concert need logical for dispossessed; no reason exists the claims those harassing lessly imposing expense will needless on a cotenant rights. ing The be accorded his full possession that a eotenant out of point together, statutory provisions to, above referred when considered would rights cotenant, to this conclusion. Veronica husband; it judgment against her remain unaffected party. her a As might prudent made have been to have unity of interest as tenants in common there exists no such between joint tenants. Each eotenant entirety exists between tenants *10 possession particular moiety in common hol'ds title and his his right; recognizing rights own perceive and we in one cotenant of a recognized by nothing cotenant out of possession not other cotenants inconsistent with such cotenant’s title. Veronica Keller with stands sole, opinion reference the real estate to we are of femme considering the admissions in defendant’s not answer, we should speculate any possible futility against on anof execution her husband occupancy husband, alone. If her with her husband is that of her arising relation, from we the marital consider it as consistent take to changing upon accompany view that his his domicile she will him change rights her domicile as assume that will assert marital to she in the him to old prevail real estate and on remain with her rights, any, warranty domicile. Plaintiffs’ if under the arise February 23, 1887, 11, 1929, determined November were George children; rights death of J. Keller without whereas the Robert Keller will and Veronica Keller are derived from the of said withholding possession J. Keller. If the ouster be act defendant, participated wife, should she made damages profits? to not. monthly rents and We think respond 417; [Meegan Gunsollis, Thompson, Hunt v. she, judgment against husband, Should pos- after her refuse
154.] judgment possibly session and thus render in- the execution of such effective, against institute a action her. like objection might interposed plaintiffs’ petition
Defendant have an to parties proper for a see fit to plea, defect of but he did not do so; that he possession and defendant’s admission that he was in .any raising 'plea from plaintiffs, withheld the same in the absence nonjoinder parties, (Secs. R. issue to waived defect, any, arising if Ann., 1000, 1010), Mo. Stat. from pp. plaintiffs’ party. failure to make Veronica Keller a jurisdictions. foreign from
The cases relied on defendant are statutory They give provisions do not consideration similar those existing mentioned, marital relation hereinabove but are based on the domicile, equal rights family between husband and in the futility possible homestead and the of an execution only. 499;W. spouses Tobias, 85 Mich. 45 N. [Haddy Walker, (Casado v. Yrama Arbuckle v. Vt. Atl. One cotenant in tegui, 338), 3 Porto effect a resident Rico Fed. is to the indispensable ejectment where proceeding common was an to an title; the issue was legal but in that case claimed the whole presented by interposed in the trial court. plea relating ejectment therefore, point the count
We, rule against defendant’s contention. (material plaintiffs’ count in
Defendant’s answer count) alleges the, owner- ly differing answer to the
743 ship in defendant and Veronica Keller, his wife. The evidence es- tablishing snch ownership been has 1550, reviewed. Section Revised (Mo. Statutes 1929 Ann., Stat. p. 1732), relating par- to actions for tition, provides: “Every person having any such.premises, interest in whether in possession otherwise, shall party made to such petition” also, [see, Secs. 1547, 1549, 1560, R. 1929, Ann., S. Mo. Stat. pp. 1730, ; 1731, and the law together is well settled, with rea- 1738] assigned sons therefor, having that all premises an interest are necessary parties Lilly Menke, to the action. [See, v. 126 Mo. 28 643, 650; S. W. Carson v. 282 Hecke, 580, 850, Mo. 222 590, S. W.
853(4, 5); Harper
Hudgings
(Mo.),
It plaintiffs exception that all the with the of Edwin A. Keller, Helena and Ella K. proper, Rau Miller day have had fair rights court and a trial far rights so as their and the Robert Keller (This involved. argument are plaintiffs’ here.) is conceded in appears It also that Edwin A. K. Helena Rau and Ella Miller may have, upon proper presentation good issues, cause of ejectment (including action in damages profits) and rents and against Veronica well Keller as as Robert Keller. These matters, think, would been we have eliminated consideration ’ here had plaintiffs the trial court directed necessity attention making partition proceedings, Veronica Keller a in the event of failure so to do a motion on entertained behalf of plaintiffs’' petition. defendant to dismiss said count We rule, justice in the furtherance of and the elimination of issues on which parties day have had their in court R. S. [Sec. Ann., p. 1362;
Mo. Stat. Chicago, Hoelzel v. Rock & Island Pacific Ry. Co., (2d), 126(17); 85 W. McCombs Ells berry, 135(16) judgment 337. Mo. ], should be reversed and the as to each count with cause remanded plead- amend the counsel to permit circuit court to directions to the desire, pro- out, they if so
ings pointed errors correct if determined; or, they do herein ceed with the trial the issues should opinion; this with desire, proceed in accord not so judg- out, that pointed herein seek to the errors parties correct except all ment in Eobert Keller favor of directed, Miller, herein K. Ella Helena Eau Edwin judgment after final abeyance and embodied should be held in Westhues, CC., Cooley and presented. thus to be trial the issues concur. *12 Bohling, C., adopted foregoing opinion
PEE CUEIAM: The judges concur. All the opinion court. as the Ray Trice, Appellant. 135. State Two, Division March 1936. notes The seizin 80, p. 559, note J., sec. C. 83.] per et non toutr my Keller Veronica Keller Robert that, notwithstanding a specifically provided by statute It is prove any interest in on the of some failure any ejectment proceedings, one or more of in, claimed premises they may entitled to as may recover interest several R. instituted. though separate had been actions [Sec. only with the in further Ann., p. We are concerned Mo. Stat.