234 Mo. 144 | Mo. | 1911
— Suit to set aside a warranty deed to forty acres of land in Linn county, Missouri.
Plaintiff Phidelia Reynolds is the widow of Daniel E. Reynolds, who died intestate in 1893. All the other parties plaintiff and defendant are the children and heirs of said Daniel E. and Phidelia Reynolds. The land in controversy was owned by Daniel E. Reynolds, deceased, he having purchased the same from the Hannibal & St. Joseph Railroad Company in 1883. Defendant, his eldest son, became of age in 1881, and for several years before and after reaching his majority was the mainstay of the family.
On April 24, 1885, defendant’s father and mother, the said Daniel E. and Phidelia Reynolds, conveyed to him, by warranty deed, the land in question, the consideration named in the-deed being “the sum of five hundred dollars, to be paid by the said party of the second part in maintenance.” On the same day defendant executed a deed of trust on said land, as follows:
*148 “This deed, made and entered into this 24th day of April, eighteen hundred and eighty-five, by and between Edwin E. Reynolds, of the county of Linn and State of Missouri, party of the first part, and Ben Wade, the present acting sheriff, and his successor in office, of the county of Linn, State of Missouri, party of the second part, and Daniel E. Reynolds and Phidelia Reynolds, his wife, during their natural life, of the county of Linn, State of Missouri, parties of the third part:
“Witnesseth, that the said party of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to him paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, the following described real estate: Southwest quarter of section 2, township 58, range 18, situate, lying and being in the county of Linn, State of Missouri, to-wit: being the southwest quarter of the southwest quarter of section 2, township 58, range 18, being forty acres.
‘ ‘ To have' and to hold the same, with the appurtenances, to the party of the second part, and to his successor or successors in this trust, and to them and their grantees and assigns forever.
“In trust, however, for the following purposes: Whereas Edwin E. Reynolds, the said party of the first part, has this day made, executed and entered into an agreement, which is hereby witnessed by this agreement, that he will faithfully support and maintain Daniel E. Reynolds and Phidelia Reynolds, during their natural lives, with the necessaries of this life, in sickness or health, the consideration for this agreement is that Daniel E. Reynolds and Phidelia Reynolds have this day executed and delivered to Edwin E. Reynolds a good and sufficient deed of warranty to the forty acres described in this instrument, the*149 consideration for said deed of warranty being the agreement of Edwin E. Eeynolds to support them during their natural lives. Now, therefore, if the said party of the first part shall faithfully perform and fulfill said contract hereby entered into by him, then this deed shall be void, otherwise to remain in full force and effect. Witness my hand and seal this 23d day of April, 1885'.
‘‘Edwin Eeynolds. (Seal.) ’ ’
The warranty deed, duly acknowledged, was filed for record February 7, 1887, and the trust deed on December 20,1905, in the office of the recorder of deeds • of Linn county.
According to the testimony of Mrs. Eeynolds, her son, the defendant, was twenty-five years of age when the land in suit was conveyed to him. Two years thereafter he married, removed from the homestead, and dwelt with his wife on an eighty-acre tract of land, near by, which was given him by his father, Daniel E. Eeynolds. Whether this eighty acres was ever deeded to defendant witness could not remember. She further testified as to the land in dispute: “We always claimed the land as ours, and paid the taxes on it. Since Mr. Eeynolds died I have improved it and built buildings on it. There isn’t anything there now that was there when he deeded it to Ed., only a few old apple trees. I put all the improvements on it. Ed never said anything about claiming any right to the land. We supposed it was ours, and we thought he took the other eighty. He did nothing to support us after he got married. I couldn’t tell exactly what, if anything, he did towards supporting us before he got married. Of course he helped about the work, and he paid money I suppose. I don’t remember; I have never charged my mind with it. He paid no board, and lived there as a member of the family. He and the other boy worked there together. I didn’t see any difference be
Defendant testified in substance that business was transacted ifi his name, after he became of age, and that he was responsible for and paid the debts of the family; that the last debt paid by him was in 1891, when he paid a balance due on a note for $58'. His father paid $400' for the land which was conveyed to him. The forty acres which he deeded to his mother was purchased for $190 from the Hannibal & St. Jo
Two'of defendant’s witnesses testified that after defendant was grown, and until his marriage, he was managing head of the household and that the family largely depended on him to carry on the business. It was the understanding of these witnesses that Mrs. Reynolds claimed the land in question as hers from the time of her husband’s death, and that the taxes were paid by her. One of the witnesses testified that the land in dispute was worth from eight hundred to a thousand dollars when Mr. Reynolds, defendant’s father, died, and that the rental value of this, and the forty acres conveyed by defendant to his mother was about two dollars an acre per year. Another witness testified that the use of the eighty acres was worth about a hundred dollars a year.
The court below found as a fact that the defendant had “wholly failed, neglected and refused to perform his said agreement to support, maintain and furnish
It is objected, and assigned as error, that (1) the finding of facts is not supported by the evidence, and (2) that the evidence is insufficient to support the decree.
The finding of the court that Daniel E. Reynolds held the land in adverse possession is supported by neither the facts nor the law. There was no adverse possession, upon any theory of the case. Nor do the facts support the finding that the defendant agreed, by the terms of the trust deed executed by him, that in event he should fail to support his parents their warranty deed should be void. We cannot understand upon what theory of fact the court made this finding. If by such finding the court meant to give a legal construction to the two instruments read together, such intention is certainly not clearly expressed. However, if the judgment of the court setting aside the warranty deed, and decreeing the respective interests of the. par
This is an equity ease. We have all the facts before ns. We are not disposed to send cases back for retrial because of errors' committed which do not affect the substantial rights of the parties. If the decree in this case is for the right party, we will be disposed to let.it stand.
The real question in the case is this: Construing the two instruments together in the light of the evidence and the purpose sought to be accomplished, does it appear that the agreement of defendant to support his parents was a condition subsequent? If this question be answered in the affirmative, then, under the finding that the agreement to support was wholly unperformed, the warranty deed should be set aside. The case of Anderson v. Gaines, 156 Mo. 664, cited by appellant, while it refuses to set aside the deed involved in the case because of failure to show a condition subsequent, concedes the right to rescind in a proper case. The court says (l. c. 670): “It was competent for the parties if they had seen fit to so agree to make the performance of the promise a condition precedent to the vesting of the estate, or its non-performance a condition subsequent for which the estate might be divested.” So Haydon v. Railroad, 222 Mo. 126, proceeds on the theory that where the promise is a condition subsequent, its breach will authorize rescission, although in that case it was held that the promise was a covenant and not a condition, and therefore rescission was denied. If, on the other hand, the agreement to support was a covenant merely and not a condition, then the suit should be dismissed, and the plaintiff, Phidelia Reynolds, should pursue her proper remedy, namely, suit on the covenant and, if necessary, foreclosure of the deed of trust given to secure same. It is the general rule that conditions subsequent are not
In the case of Studdard v. Wells, 120 Mo. l. c. 29, Black, J., speaking for the court, says: “It,, is a familiar rule often asserted in the books that conditions subsequent are not favored in the law, because they have the effect, in case of breach, to defeat vested estates ; and when relied upon to work a forfeiture they must be created in express terms, or by clear implication. . . . It is also true that the question whether a clause in a deed is a condition or a covenant is one of intent to be gathered from the whole instrument by following out the object and spirit of the deed or contract. ’ ’
The above is quoted with approval by Lamm, J., in Haydon v. Railroad, 222 Mo. l. c. 139. Judge Lamm says in the latter case, l. c. 140: “We are left to an interpretation of the contract by the good sense of the thing in the light of its subject-matter and language used;” He also quotes the following from Freeland v. Mitchell, 8 Mo. 487: “The only principle to be extracted from the numerous cases in relation to the dependence or independence of covenants is, that they are to be construed according to the intention and meaning of the parties and the good sense of the case.”
It will thus be seen that the earliest and latest expressions of this court meet in the rule last above formulated, and we may safely take it as a guide in investigating the present case. The two instruments must be read together as parts of the same transaction, and they must be read in the light of the surrounding circumstances, keeping in mind the object sought to -be attáined. The parties sought to secure
Applying the doctrine announced above, that the contract is to be interpreted “by the good sense of the thing in the light of its subject-matter and language used,” we are satisfied that the good sense of the thing is to hold that these parties contemplated that the son was to get the farm only on condition of support for life; that this condition failing, the warranty deed ought to fail. •
The law invoked by appellant upon the proposition that equity will not enforce forfeiture, does not apply in a case like this where the grantors have never been out of possession. There is no occasion for forfeiture or re-entry. We think the decree properly annulled and cancelled the warranty deed, and correctly declared the respective interests of the parties.
The judgment is affirmed.