Studdard v. Wells
25 S.W. 201
Mo.
1894
Check Treatment
Black, P. J.

On the tenth of February, 1873, Charles F. Studdard and his wife, Matilda, by their deеd of that date,’ conveyed the land in question ‍​‌​​‌‌​‌​‌​‌​​‌‌‌​​​​‌​​​​​‌​​​​‌‌‌​​‌​‌‌​​​‌‌​‌‍to their son Theodore. The deed uses the words, “grant, bаrgain and sell,” recites a consideration of $3,000, paid by Theodore, and *28after describing the land, states: “Said lot or parcel of land is a deed of gift to Theodore Studdard by Charles F. Studdard and Matilda Studdаrd, said land to remain in possession of said Charles F. Studdard and Matilda Studdard their natural lifetime, and at the death of Charles F. Studdard and Matilda Studdard, said land is the property of Theodore Studdard. The said Theodоre is to pay the taxes on said land, and has to support the said Charles F. Studdard and Matilda Studdard during their natural lifetime, and at their death said Theodore Studdard shall have possession of the same.”

The оther evidence discloses the following facts: At the date of this deed, Theodore and his wife resided on the land, and his father and mother, the grantors, resided with them. The mother died a few years thereafter. Theodoi’e married his second wife, she being one oh the plaintiffs in this suit, in 1885; and he died in March, 1888. Theodorе managed, conducted and carried on the farm until his death; and during all that time cared for and supрorted his father and also his mother during her lifetime. The plaintiff, the widow of Theodore, continued to rеside on the farm for a period ‍​‌​​‌‌​‌​‌​‌​​‌‌‌​​​​‌​​​​​‌​​​​‌‌‌​​‌​‌‌​​​‌‌​‌‍of six months after the death of her husband, and during that time supported and cared for the old gentlemen, who was then eighty-six or seven years of age. Differences then arose between them and she left. The weight of evidence is that he became abusive, took charge of the farm and rented it out. In short there is much evidence to the effect that he compelled her to leave. On the other hand there is evidence to the effect that she left of hеr own volition. He lived two or three years thereafter, during which time she nor her husband’s estate furnished him any support.

Theodore paid the taxes on the land from 1873 to 1887. As has been said, Theodore died in March, 1888. *29On June 10, 1889, the old gentleman executed a will, whereby he constituted one of the defendants his ‍​‌​​‌‌​‌​‌​‌​​‌‌‌​​​​‌​​​​​‌​​​​‌‌‌​​‌​‌‌​​​‌‌​‌‍executor, and made a disposition of this land different from that specified in his former deed.

The deed from Charles E. Studdard and his wife to their son Theodore, conveyed the land to him, reserving to the grantors therein a life estate. It took effect as a conveyance upon its delivery; for there is nothing in it in the nаture of a condition precedent. This is clear. The question then arises whether the deed conveyed the land to Theodore upon a condition subsequent, and this presents the most important question in the case, for if not upon a condition subsequent the judgment should be affirmed.

Questions arising out of conditions subsequent have been before this court frequently, ‍​‌​​‌‌​‌​‌​‌​​‌‌‌​​​​‌​​​​​‌​​​​‌‌‌​​‌​‌‌​​​‌‌​‌‍but in most of the cases the conditions were clearly expressed, as in Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398; Clarke v. Brookfield, 81 Mo. 503; Ellis v. Kyger, 90 Mo. 600; O’Brien v. Wagner, 94 Mo. 94. • In these cases words of condition were used or there were сlauses of re-ent^y or reverter. It is a familiar rule often asserted in the books that conditions subsequеnt are not favored in the law, because they have the effect in case of breach tо defeat vested estates; and when relied upon to work a forfeiture they must be created in express terms or by clear implication. 2 Wash, on Real Prop. [5 Ed.], 7; Morrill v. Railroad, 96 Mo. 174. And courts will construe clauses in deeds as convenants rather than conditions, if they can reasonably do so. 2 Wash, on Real Prop. [5 Ed.], 4. It is аlso true that the question ‍​‌​​‌‌​‌​‌​‌​​‌‌‌​​​​‌​​​​​‌​​​​‌‌‌​​‌​‌‌​​​‌‌​‌‍whether a clause in a deed is a condition or covenant, is one of -intent to be gathered from the whole instrument by following out the object and spirit of the deed or cоntract. St. Louis v. Wiggins Ferry Company, 88 Mo. 618.

*30Now the substance of this deed is, that the grantors convey the land to their son, reserving to tnemsеlves a life estate, with the further statement that he is to pay the taxes and support the grantors during their lives, and at their death he is to have possession. No apt or appropriate words to create a condition are used; nor is there any clause of forfeiture or of re-entry or of reverter. We are unable to find anything in this deed, whether we treat it as a gift, or as made for a mоney consideration, which will justify us in saying it is a deed upon condition subsequent. To say the stipulation in the deеd to pay the taxes and support the grantors is a condition subsequent, the nonperformance of which will defeat the estate granted, is to make a stipulation for the parties which they did not sеe fit to make for themselves. This we can not do.

In our opinion the trial court should have directed a verdict for the plaintiffs, and with this conclusion it is useless to speak of the instructions which were given and refused. The judgment is affirmed.

Baeclay, J., not sitting, the other judges concur.