96 Mo. 394 | Mo. | 1888
This is a petition in ejectment, filed August 27, 1885, to recover possession of the southeast quarter of the southeast quarter of section 19, township 51, range 8, in Audrain county. The answer admits that Elizabeth Mansfield is in possession of the land, and denies all other allegations of the petition. On the trial, the suit was dismissed as to Edward Mansfield, and judgment rendered in favor of plaintiff as against remaining defendants for possession, one dollar damages and |8.25 for monthly rents and profits. From this judgment the defendants have appealed.
On the trial, in support of his title, plaintiff put in evidence a certified copy of the United States land entries, showing that Richmond Pearson entered the land in question. Also the following deed from said Pearson and wife, conveying said land, viz.: ‘£ This indenture, made this twenty-fifth day of January, in the year of our Lord one thousand eight hundred and fifty-two, between Richmond Pearson and Elizabeth A., his wife, of the county of Audrain and state of Missouri, of the one part, and Elizabeth S. Mansfield, of the county and state aforesaid, of the other part, witnesseth : That the said Richmond Pearson and Elizabeth A., his wife, for and in consideration of the sum of sixty dollars to them in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey and confirm unto the said Elizabeth S. Mansfield, his children and assigns forever, all that tract or parcel of land situated, and being in the county of Audrain, in the
Plaintiff also put in evidence a deed of trust, dated the fifth of January, 1870, executed by Robert C. Mansfield and Elizabeth Mansfield, as party of the first part, conveying the land in question to M. Y. Duncan, party of the second part, as trustee of a certain note, given to S. M. Edwards by said R. C. Mansfield and Elizabeth Mansfield, and William C. Mansfield, for the sum of five hundred dollars, payable in one year, with ten per cent.- interest. It is provided in said deed, that if default be made in the payment of said note, said Duncan might sell the premises conveyed at public sale, first giving twenty days notice of the time, place and terms of sale.
Plaintiff also put in evidence a trustee’s deed, made by said Duncan in pursuance of a sale made on the eighth of February, 1878, reciting default in payment of said note, twenty days notice, and sale of land to plaintiff Riñes for fifty dollars. Duncan, the trustee, testified that he executed the deed to Riñes ; that in making said sale, he complied with the terms of the deed of trust, and that the deed was made in pursuance of said sale.
Plaintiff, in his own behalf, testified that he bought the note, secured by the deed of trust, of Edwards ; that the interest thereon had been paid regularly up to 1877; that the interest was sometimes paid by R. C.
The first and most important question arising on the record is: What estate did Elizabeth Mansfield take under the deed of Pearson and wife to her? It is insisted by plaintiff that she took the fee, and by defendants, that she only took as tenant in common with her children. In construing the deed, it must be looked at as an entirety, and effect given to the intention of the grantor if it can be thns ascertained. The deed first names as grantors Pearson and wife as the party of the first part and Elizabeth Mansfield as the other party; it then “grants, bargains and sells,” etc., to Elizabeth Mansfield, her children and assigns forever (not their assigns) the property in question with habendum to have and to hold the same unto the said Elizabeth, her heirs and assigns forever. Then follows the warranty to said Elizabeth, her children and assigns. Considering these inconsistent clauses in the deed, in the light of the fact disclosed by the evidence that.said Elizabeth had eight children when it was executed, all of whose names could have been inserted in the deed if it was intended that they should take as tenants in common with the mother, and in the light of the fact that she was, in the habendum clause, to have and to hold the premises conveyed to her and to her heirs, we are justified in concluding that the word children in the granting clause was used in the sense of the heirs. While the habendum clause in a deed cannot be used to defeat a grant, it may be used to explain or qualify it, and to define the interest granted, if it has not already been ¡defined. Warne v. Brown, 102 Pa. St. 347. In case of Green v. Sutton, 50 Mo. at p. 192, it is said, if in a deed,
It is further insisted that the deed of trust is void as to Elizabeth Mansfield, though she joined her husband in executing it, and she and her husband are described therein as the party of the first part making the grant. This objection is fully answered by the case of Hagerman v. Sutton, 91 Mo. 519. The above case also answers the further objection made by defendant to-the effect, that, as the note signed by Mrs. Mansfield was void as to her, the deed of trust given to secure it was also void, notwithstanding the fact that the note was valid as to R. C. Mansfield and W. C. Mansfield, who also signed it.
The point made that plaintiff’s action was barred by the statute of limitations is without merit. The suit-was brought within ten years after the last payment was made on the note secured by the deed of trust, and within ten years after the premises were sold under it, at which sale plaintiff became the purchaser.
As to the claim made that there was no evidence as to the monthly value of the rents and profits, it may be said that the evidence shows that the land was in cultivation, and we cannot therefore say that there was no evidence upon which to base the finding of $8.25, as the-monthly value of the rents and profits.
We see nothing in the record justifying an interference with the judgment, and.it is hereby affirmed.
