204 Mo. 200 | Mo. | 1907
Plaintiff sues to quiet title to certain land in Bates county to-wit: East one-half of southeast one-fourth of section 13, township 40, range 30, and southwest one-fourth of southwest one-fourth of section 18, township 40, range 29,120 acres. Defendant disclaims any title to the north one-half of the east one-half of the southeast one-fourth of section 13, but does claim fee simple title to an undivided half of the rest of the land, subject to the life estate of James F. White, now living.
Martin White is the common source of title; by
James P. White had two children at the date of the deed, one of whom, Martin S. White, has conveyed whatever interest he had in the land to- the defendant. That interest is claimed to be an undivided half of the remainder in fee on the termination of what is claimed to be the estate for the life of James P. White.
The whole controversy is concentrated in the construction to be given to the above-mentioned deed from Martin White to James P. White; on the part of the plaintiff it is contended that the effect of that deed was to convey to James P. White a fee simple title;' on the part of the defendant the contention is that it created what by the common law hnd the Statute de donis would be a fee tail, which by virtue of oiir statute results in a life estate to James P1. White with remainder in fee to his children, or if not that, then the deed created a tenancy in common in fee to James P. White and his- children. The following is a copy of the deed in question:
“This indenture made and entered into the fifth day of June, eighteen hundred and fifty-seven, between Martin White of the first part and James P. White of the second part, both of Bates county, Missouri, witnesseth:
' “That the party of the first part has this day bargained and sold unto the party of the second part, and by these presents do bargain and sell unto the party of the second part, his children and assigns forever all of my interest in and to the following described lot or parcel of land situated, lying and being in Bates county, Missouri, as follows, to-wit: [describing the land in suit with other land], containing in all four hundred and forty acres, and have received in hand paid the sum of one thousand dollars, the receipt whereof is*205 hereby acknowledged by the party of the first part do hereby sell and convey nnto James F. White, party of the second part, for the sum aforesaid, all my right and interest and title with all and singular thereunto belonging or any wise appertaining to the aforesaid land, and that the party of the first part have good right to sell and convey his title in the above described land unto the aforesaid parties of the second parts his children and their assigns forever and that the said Martin White, party of the first part will warrant and forever defend against the claims of himself, his-heirs and assigns forever, and against the lawful claims of any and all persons whomsoever unto the foregoing described land unto James F. White, his children and their assigns forever. In testimony whereof, I have hereunto set my name and fixed my seal the day and date above written.
‘ ‘ Martin White ( sear. ) ’ ’
The trial court construed the deed to be a conveyance of the land in fee simple to James F. White and accordingly rendered judgment that the title in fee was vested in the plaintiff for the use of the estate of Bran-ham Hill, that Martin S. White, the defendant’s grant- or, took no title under the deed and therefore defendant had no interest in the land. From that judgment the defendant appealed.
The deed is the product of a mind of little education in the science of conveyancing; its meaning is not clear. In construing a deed bearing on its face evidence of the lack of learning in the writer we should not be very strict in applying the technical meanings of technical words, but, recognizing its unskillful source, our aim should be to gather the dominant intention as best we may from the inartificial terms used. Nevertheless, after making all due allowances for the lack of skill, and applying the rules of construction with as much concession as possible, still we must take the deed as
It is contended on the, part of the plaintiff that the word “children” which is used in three places in this deed is used as meaning heirs. But if an interpretation of the deed in plaintiff’s favor depended on construing the word children to mean heirs we thlnTr he would have a difficult position to maintain.'
In Rines v. Mansfield, 96 Mo. 394, the court construed the word “children” in the granting clause of a deed to mean heirs, but it did so for the reason that the habendum clause forced that construction.
In the deed before us there is no habendum clause nor is there anything in the deed to indicate that the word children therein used was intended to have any other than its common meaning. If words are so used in the deed as to have no effect a court cannot reconstruct the instrument so as to put into effect what it may conjecture was the purpose of the grantor.
It would be a very strained construction to say that it was the intention of the parties to this deed to convey the land to James F. White and his children as tenants in common. If such had been the intention the natural course would have been to have inserted the names of the two children then living in the granting clause of the deed as grantees. If it was the intention to include not only those then in being but those thereafter to be born, then the idea of a tenancy in common must be excluded because the unborn children could not .be made tenants in common in an estate presently
Nor does the deed create an estate in fee tail, "because words of inheritance are not used. Words of inheritance were as essential at common law in the creation of an estate in fee tail, as they were in the creation of an estate in fee simple. The statute, section 4590, Revised Statutes 1899, dispensing with the necessity of using the word “heirs” or ether words of inheritance, applies only to the creation of estates, in fee simple. [Kinney v. Mathews, 69 Mo. 520.] Our statutes abolishing entails and the rule in Shelley’s ease, sections 4592 and 4594, Revised Statutes 1899', refer to common law estates. Blaekstone says: “As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feodal donation, the word body, or some other words of procreation, are necessary to make it a fee tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance, or words of procreation, be omitted, albeit the others are inserted in the grant, this will not make an estate tail.' As, if the grant be to a man and the issue of his body, to a man and his seed, to a man and his children, or offspring; all of these are only estates for life, there wanting the words of inheritance.” [2 Black. Com., p. 115.]
This deed is exactly within the terms of the text just quoted, “to the man and his children,” and according to Blaekstone its common law effect was to create a life estate only; the words “and his children” in that connection mean nothing, they are words of procreation, but not words of inheritance, and the lawwriter says there must be both words of procreation and words of inheritance to create an estate tail.
There, are no words in the deed to signify a life estate and a remainder; therefore, independent of what is claimed by appellant to be words creating an estate
Measured by the rules of the common law as above quoted this deed would convey only'a life estate to J ames F. White, the fee remaining in the grantor, but our statute (section 4590) comes into force and gives the deed the effect it would have had at common law if words of inheritance had been added. We construe the deed to convey the title to James F. White in fee simple.
The judgment is affirmed.
