92 S.W.2d 157 | Mo. | 1936
Lead Opinion
Plaintiffs sue in ejectment and for partition of one hundred and twenty-seven acres of real estate situate in Cape Girardeau County, Missouri. The case is here on cross-appeals after unsuccessful motions of the parties plaintiffs and defendant for new trial and in arrest of judgment.
John G. Keller owned the real estate in fee, and, with his wife, on February 23, 1887, by warranty deed in usual form recorded March 15, 1887, in book 18 at page 157, Recorder's office of said county, conveyed said real estate to his son George J. Keller. Said deed (omitting the conclusion) reads:
"This Indenture, made on the twenty third day of February, A.D., One Thousand Eight Hundred and Eighty Seven by and between John George Keller and Augusta Keller, husband and wife, of the County of Cape Girardeau in the State of Missouri, party of the first part, and George J. Keller of the County of Cape Girardeau in the State of Missouri, party of the second part:
"Witnesseth, that the said party of the first part in consideration of the sum of three thousand dollars; to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm, unto the said party of the second part, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Cape Girardeau and State of Missouri, to-wit:
[Here follows a description of the real estate] "and it ishereby expressly agreed to and understood by the parties hereinnamed that in case that the said George J. Keller should diewithout children the above described real estate shall revert tohis father and his heirs and that the said George J. Keller shallnot sell or dispose of said real *735 estate without first obtaining the consent of the party of thefirst part herein named. (Italics ours.)
"To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging, or in any wise appertaining, unto the said party of the second part, and unto his heirs and assigns, forever; the said party of the first part hereby covenanting that they are lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that they have good right to convey the same; that the said premises are free and clear of any incumbrance done or suffered by them or those under whom they claim; and that they will warrant and defend the title to the said premises unto the said party of the second part, and unto his heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever."
John G. Keller, grantor, died August 6, 1888, leaving said George J. Keller, grantee, John H. Keller, Louis T. Keller, Julius Otto Keller, August W. Keller, Mrs. Anna Blattner and Mrs. Mary Schwab, his children, surviving as his sole and only heirs. On November 20, 1888, with the exception of said Louis T. Keller, all of said children (the wives of those married joining) of said John G. Keller, by quitclaim deed, in usual form, recorded June 2, 1890, in book 23, at pages 29 and 30, in the recorder's office of Cape Girardeau County, conveyed said real estate to said George J. Keller, for the recited consideration of "one dollar and the love and affection we bear our brother." And on May 20, 1890, all of said children (their wives joining), with the exception of August W. Keller (who joined in said quitclaim deed) and said Louis T. Keller, by warranty deed, in usual form but not acknowledged or recorded, conveyed said real estate to said George J. Keller for the recited consideration of "Ten Dollars." In each of said deeds there was inserted immediately after the description of said real estate the following: "Thisdeed is made in relinquishment of any and all right, title, claimor interest to the premises above described which the saidparties of the first part have or may inherit through theirfather John G. Keller by reason of the reversionary clause in acertain deed of conveyance dated the 23rd day of February, 1887,and recorded in the recorder's office of Cape Girardeau, County,Mo., in record book 18 at page 157."
George J. Keller died testate November 11, 1929, without children. His will recites "I have never had any children of my own," and, after disposing of certain portions of his estate, by Article 5 of his said will, he disposed of the real estate here involved, as follows: "I hereby give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situated, whereof I may be seized or possessed, or in which I may be interested at the time of my death, or in which I may be in any manner entitled, unto *736 Robert Keller and Veronica Keller, his wife, share and share alike absolutely."
The parties to this litigation are: William Keller, Mathilde Eggimann, Henry M. Keller, Fred A. Keller, Arthur O. Keller, Christine Hager and Robert Keller (the children of said John H. Keller, now deceased); Edwin A. Keller, Helena Rau, Ella K. Miller (the children of said Louis T. Keller, now deceased); Arnold G. Keller, Magdalena Schrader (the children of August W. Keller, now deceased); Owen W. Crites, Mildred Marie Crites and Virginia Dott Crites (the minor children of Selma K. Crites, now deceased, daughter of said August W. Keller); said Anna Blattner and said Mary Schwab and said Julius Otto Keller. All are parties plaintiff except the aforesaid Robert Keller, defendant. The said minors appear by their next friend W.B. Crites, their father.
The petition, except for the fact that some of the plaintiffs appear by next friend, is in conventional form. Defendant's answer to the count in ejectment admitted possession in defendant and the withholding of possession from plaintiffs, denied the other allegations in said count of said petition, and pleaded estoppel on the part of certain plaintiffs by reason of the execution of said quitclaim and warranty deeds. Defendant's answer to the count in partition denied the allegations in said count of said petition and for the further defense pleaded estoppel on the part of plaintiffs by reason of the execution of said quitclaim and warranty deeds, and alleged exclusive possession and ownership in the defendant and Veronica Keller, his wife. The replication was a general denial. Trial was to the court, a jury being waived, and no declarations of law were asked or given.
The trial court rendered judgment for the defendant and against all the plaintiffs on the count in ejectment; and judgment for partition, finding defendant Robert Keller to be the owner in fee simple of an undivided six-sevenths interest in and to the real estate in question, and plaintiffs Edwin A. Keller, Helen Rau and Ella K. Miller, as the sole and only heirs of Louis T. Keller, deceased, each the owner of an undivided one-twenty-first interest in and to the real estate. It being conceded by the parties that the real estate could not be partitioned in kind, the same was ordered sold for the purpose of partition between Robert Keller, defendant, and Edwin A. Keller, Helena Rau and Ella K. Miller, plaintiffs.
The proper construction of the deed of February 28, 1887, from John G. Keller to George J. Keller is of controlling importance to the solution of the fundamental issue presented for review. With the exception of that portion of the deed appearing in italics, the deed purports to convey the fee simple title to the grantee; and defendant contends a fee simple title absolute was conveyed to George J. Keller. If correct, plaintiffs may not maintain ejectment or partition. *737
[1] Of basic importance in the construction of deeds and wills is the intention of the parties; and to this rule, other rules are considered aids. [Eckle v. Ryland,
[2] We think the provisions of the deed under discussion are not obscure, uncertain or of doubful meaning, and that the provisions thereof can be brought into harmony and effectuate the intent of the grantor as disclosed by the deed and the intent of the grantee as disclosed by his acts and conduct. The phrase "it is hereby expressly agreed to and understood by the parties herein named" places the italicized portion of the deed (without giving consideration to the apparent fact that it was inserted in a blank printed form Lemmon v. Lemmon,
Gannon v. Albright (en banc),
[3] The clause reading "and the said George J. Keller shall not *739 sell or dispose of said real estate without first obtaining the consent of the party of the first part herein named," we think, further restricted rather than enlarged the title conveyed. Under the foregoing authorities only a base or qualified fee passed under the deed. Any effective conveyance of the fee simple title during the lifetime of the grantee called for a conveyance subscribed by said "party of the first part." [Sec. 3019, R.S. 1929, Mo. Stat. Ann., p. 1866.] The clause is consistent with the title conveyed to the grantee; and no occasion exists to discuss its possible further effect in the instant case.
[4] As contended by defendant, the fact that the deed recited a consideration is to be considered, but does not in itself rule the issue. [Wood v. Kice,
We, therefore, hold that the deed from John G. Keller to George J. Keller passed only a base or qualified fee, determinable upon the death of said George J. Keller, subject, so far as material here, to defeasance in the event of the death of said George J. Keller without children, with the reversion in the said John G. Keller and his heirs, and upon the death of said George J. Keller without children said real estate reverted to the heirs of said John G. Keller.
The above construction of the deed is in complete accord with the grantee's securing the quitclaim deed of November 20, 1888, and the warranty deed of May 20, 1890, conveying the reversionary title of certain heirs of John G. Keller; for if the grantee had interpreted the deed as now contended for by the defendant there was no need of securing said quitclaim or warranty deed, nor of the statement in his will that he died without children.
[5] A motion for new trial was filed on behalf of all of the plaintiffs. However, upon plaintiffs' appeal, we are asked to render judgment only in favor of Edward A. Keller, Helena Rau and Ella K. Miller, children of Louis T. Keller, deceased, the only heir of John G. Keller, grantor, who did not sign either said quitclaim or warranty deed. The effect of said deeds to convey whatever reversionary interest the grantors therein might have had in and to the real estate *740
is conceded by plaintiffs in their printed argument here. [See Inlow v. Herren,
[6] George J. Keller, as one of the heirs of John G. Keller and as grantee in the aforesaid quitclaim and warranty deeds conveying the reversionary interest of five of the seven heirs of said John G. Keller, acquired an undivided six-sevenths fee simple interest in the real estate in controversy; and by his last will and testament devised said interest in said real estate "unto Robert Keller and Veronica Keller, his wife, share and share alike, absolutely." Veronica Keller is not a party to this litigation; and defendant contends plaintiffs may not maintain ejectment or partition without making said Veronica Keller a party litigant.
The phrase "share and share alike" in the operative clause of the devise to Robert Keller and Veronica Keller, created (not an estate by the entirety or a joint tenancy) a tenancy in common. Wilhite v. Wilhite,
[7] It is specifically provided by statute that, notwithstanding a failure on the part of some of the plaintiffs to prove any interest in the premises claimed in ejectment proceedings, any one or more of several plaintiffs may recover any interest they may be entitled to as though separate actions had been instituted. [Sec. 1374, R.S. 1929, Mo. Stat. Ann., p. 1595.] We are further concerned only with the interests of Edward A. Keller, Helena Rau and Ella K. Miller in the real estate. Plaintiffs' count in ejectment ignores any relation of cotenancy and proceeds upon the theory plaintiffs are entitled to the possession of the whole of the premises. Defendant's answer to this count of the petition also ignores any relation of cotenancy, "admits that defendant is in possession of the real estate mentioned and described therein; admits that he withholds possession thereof from the plaintiffs" and alleges plaintiffs have no right, title or interest in said real estate. Thus, the answer admits the ouster by defendant [See Peterson v. Laik,
[8] By Section 1368, Revised Statutes 1929 (Mo. Stat. Ann., p. 1587), ejectment proceedings "shall be brought against the person in possession of the premises claimed." Section 701, Revised Statutes 1929 (Mo. Stat. Ann., p. 910), provides "any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. And in actions to recover possession of real estate . . . any person claiming title or a right of possession to the real estate may be made a party plaintiff or defendant, as the case may require, to any such action." By section 1373, Revised Statutes 1929 (Mo. Stat. Ann., p. 1595), a tenant in common, in an ejectment action against his cotenant, is required to show "that the defendant actually ousted him, or did some act amounting to a total denial of his right as such cotenant." Limiting this review to the controverted issue presented by the pleadings in the ejectment proceeding and the evidence adduced within such issue, we are of the opinion, in view of our statutory provisions bearing on the parties litigant, that Veronica Keller was not an indispensable party to the count in ejectment and plaintiffs' failure to make her a party does not reach to the jurisdiction of the court over the subject-matter, or the statement of facts sufficient to constitute a cause of action against defendant. [See, although not ruling this issue, State ex rel. v. Staed,
Defendant might have interposed an objection to plaintiffs' petition for a defect of parties by a proper plea, but he did not see fit to do so; and defendant's admission that he was in possession and that he withheld the same from plaintiffs, in the absence of any plea raising any issue as to a nonjoinder of parties, waived (Secs. 770, 774, R.S. 1929, Mo. Stat. Ann., pp. 1000, 1010), the defect, if any, arising from plaintiffs' failure to make Veronica Keller a party.
The cases relied on by defendant are from foreign jurisdictions. They do not give consideration to statutory provisions similar to those hereinabove mentioned, but are based on the marital relation existing between husband and wife, their equal rights in the family domicile, in the homestead and the possible futility of an execution against one of the spouses only. [Haddy v. Tobias,
We, therefore, rule the point relating to the count in ejectment against defendant's contention.
[9] Defendant's answer to plaintiffs' count in partition (materially differing from the answer to the ejectment count) alleges ownership *743
in defendant and Veronica Keller, his wife. The evidence establishing such ownership has been reviewed. Section 1550, Revised Statutes 1929 (Mo. Stat. Ann., p. 1732), relating to actions for partition, provides: "Every person having any interest in such premises, whether in possession or otherwise, shall be made a party to such petition" [see, also, Secs. 1547, 1549, 1560, R.S. 1929, Mo. Stat. Ann., pp. 1730, 1731, 1738]; and the law is well settled, together with reasons assigned therefor, that all having an interest in the premises are necessary parties to the action. [See, Lilly v. Menke,
Defendant also interposed a defense of adverse possession in Veronica Keller and himself to said count in partition. Although plaintiffs are tenants in common with Robert Keller and Veronica Keller, if plaintiffs have been ousted from possession by said parties and said parties were in exclusive adverse possession of the land at the time of the institution of the suit, claiming title as their own, plaintiffs are put to their action in ejectment against said parties to settle the question of title before they may maintain partition. [Hutson v. Hutson,
Other issues presented in the briefs need not be considered. They will likely not occur upon a retrial.
It appears that all the plaintiffs with the exception of Edwin A. Keller, Helena Rau and Ella K. Miller have had their proper day in court and a fair trial so far as their rights and the rights of Robert Keller are involved. (This is conceded in plaintiffs' argument here.) It also appears that Edwin A. Keller, Helena Rau and Ella K. Miller may have, upon a proper presentation of the issues, a good cause of action in ejectment (including damages and rents and profits) and for partition against Veronica Keller as well as Robert Keller. These matters, we think, would have been eliminated from consideration here had the trial court directed plaintiffs' attention to the necessity of making said Veronica Keller a party to the partition proceedings, and in the event of failure of plaintiffs so to do entertained a motion on behalf of defendant to dismiss said count in plaintiffs' petition. We rule, in the furtherance of justice and the elimination of issues on which the parties have had their day in court [Sec. 1063, R.S. 1929, Mo. Stat. Ann., p. 1362; Hoelzel v. Chicago, Rock Island Pacific Ry. Co.,
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.