Chew v. Kellar

71 S.W. 172, 171 Mo. 215, 1902 Mo. LEXIS 238

• Court: Missouri Court of Appeals
• Decided: December 24, 1902
• Status: Published

Opinion

MARSHALL, J. — This

is an action in ejectment for the west half of the southeast quarter, and the south half of the south half of the northeast quarter of section eighteen, township fifty-three, range sixteen, in Chariton county. While the case was pending on appeal in this court,_ the plaintiff died, and the case has been properly revived in the names of his sole legatees, Elizabeth Chew and Delia A. Brown.

The controversy hinges upon the construction of two deeds. The first is a warranty deed from Samuel D. Ellington and wife to their daughter, Martha O. Gunn, wife of James Gunn, dated September 16, 1879, conveying the west half of the southwest quarter of section eighteen. The deed grants, bargains, sells, conveys and confirms, “unto the said party of the second part, her bodily heirs and assigns, ’ ’ the land' specified above. Then, following the description of the property, is this provision in the deed:

“It is the intent by this deed to convey to the sole use and benefit of the party of the second part, the above granted premises, to be held and enjoyed by her, separate and apart from her said husband and wholly free and clear from his control, interference, debt and liabilities, curtesy and all other interests whatsoever.”

The deed then contains the habendum and tenendum clauses and covenants as to title.

The second deed is a quitclaim deed from T. P. Perkinson and wife, parties of the first part, “and Martha O. Gunn and the heirs of her body of the county of Chariton, in the State of Missouri, party of the second part,” and conveys the south half of the south half of the northeast quarter of section eighteen. The habendum clause is: “To have and to hold the same with all the rights, immunities, privileges and appurtenances thereto belonging, unto the said parties of the second part,” etc.

The plaintiff traces title in this way: On April 24, 1895, Martha O. Gunn and her husband executed a deed of trust on the property, which purported to cover the fee, subject to a prior deed of trust. Default was made thereon, the trust foreclosed and the plaintiff Chew became the purchaser at the trustee’s sale.

The petition is in the usual form, and the answer is an admission of possession, a claim of ownership, and otherwise a general denial.

Upon the trial the plaintiff introduced the two deeds to Mrs. Gunn, the trustee’s deed to the plaintiff, and proved the value of the rents and profits. On cross-examination of plaintiff’s witnesses the defendants showed that Mrs. Gunn died in March, 1896, before the institution of this suit, leaving certain bodily heirs, and that the defendants claim title through Mrs. Gunn and her bodily heirs, but exactly how, is not disclosed. At the close of the plaintiff’s case, the court sustained a demurrer to the evidence, the plaintiff took a nonsuit, with leave, and after proper steps appealed.

I.

The legal question in this case is what' estate Mrs. Gunn had.

The warranty deed from Ellington and wife conveyed the first described tract, to Mrs. Gunn “her bodily heirs and assigns,” and then the deed recited that it was the intent of the deed to convey to the sole use and benefit of Mrs. Gunn “to be held and enjoyed by her, separate and apart from her said husband, and wholly free and clear from his control, interference, debt and liabilities, curtesy and all other interests whatsoever.” In describing the parties to the deed Mrs. Gunn is named as party of the second part. The granting clause is to Mrs. Gunn, her bodily heirs and assigns, and the habendum and warranty clauses are in the same words. The quitclaim deed describes Mrs. Gunn and the heirs of her body, as the party of the second part', and the habendum clause is “unto the said parties of the second part and the heirs of her body and assigns.”

By reason of these provisions and this verbiage, the plaintiff’s claim is, that it is plain that the deeds were not written by an expert conveyancer, nor by one who understood the technical meaning of the terms employed, and that for this additional and cogent reason, the intention of the parties should prevail over mere words or phrases; that as to the warranty deed there is an irreconcilable conflict between the granting clause to Mrs. Gunn, her bodily heirs and assigns, and the clause which immediately follows, expressive of intention to create a separate estate in Mrs. Gunn, free from the control or right of her husband and intending to cut off curtesy; that if Mrs. Gunn had only a life estate, as the defendants claim, this intention clause would be useless and meaningless, because curtesy begins with the death of the wife, and, therefore, could never attach to a life estate of the wife; that the deed grants the land to Mrs. Gunn, her bodily heirs and assigns, which must be construed to give Mrs. Gunn á right to alien it, and that .only so much as she does not assign or dispose of was intended to go to her bodily heirs; that it is clear the draughtsman of the deed did not know of the legal meaning or effect of a conveyance to Mrs. Gunn and her bodily heirs, and very certain that he never heard of an estate tail, or the fact that by our statute such an estate is converted into an estate for life in the first taker with a fee in remainder. And as to the quitclaim deed the plaintiff claims that an estate tail must be built up and can not be created by a mere abandonment, and also calls attention to the fact that in the first clause of the deed Mrs. Gunn and the heirs of her body are referred to as “party” (in the singular number) of the second part, while the habendum clause is to the “said parties of the second part, and the heirs of her body and assigns” and from this, the deduction is drawn that it must be held to be an absolute conveyance to Mrs. Gunn, with power in her to assign or convey it, and that only so much 'as she does not dispose of would pass to her heirs.

These ingenious contentions are supported by strong arguments and by references to prior adjudications of this court which are claimed to be pertinent to and decisive of the case at bar. The cases of Rines v. Mansfield, 96 Mo. 394; Fanning v. Doan, 128 Mo. 323; and Murphy v. Gabbert, 166 Mo. 596, are fair types of the cases cited by plaintiffs.

Murphy v. Gabbert is relied on to support the contention that the intention clause of the warranty deed has the effect to eliminate the words “her bodily heirs” in the granting clause of the deed. The question in Murphy v. Gabbert was whether the instrument was, in legal effect, a deed or a will, and it was properly held that as it expressly declared that it was not to take effect until the death of the grantor, it was a will and not a deed, because a deed must take effect in praesenti, while a will becomes operative only at the death of the testator. There can be no question as to the correctness of that decision, but its application to or support of the contention in this case, that the intention clause destroys that portion of the granting clause of the warranty deed that conveys the land to the “bodily heirs” of Mrs. Gunn, is not by any means clear, nor to be conceded.

It is true the intention clause would be unnecessary to bar curtesy if Mrs. Gunn had only a life estate. But Mrs. Gunn’s husband had another interest in the land outside of curtesy, even if she had only a life estate. He was entitled to the possession, rents, issues and profits of the property during the continuance of the wife’s life. [Flesh v. Lindsay, 115 Mo. 1. c. 17; Hall v. French, 165 Mo. 430.] The intention clause was necessary in the warranty deed to cut out this marital right of Mrs. Gunn’s husband. This right arose instantly with the making of the deed to Mrs. Gunn and continued during her life' and coverture. It was an interest which was not taken away from her husband by our statute. [Flesh v. Lindsay, 115 Mo. 1. c. 17.]

The intention clause, therefore, performed quite an important function, and is not necessarily or at .all repugnant to the granting clause, and hence did not destroy that part of the granting clause with respect to “her bodily heirs.” It is a cardinal rule of construction that effect must be given to all parts of an instrument, if possible, and that courts will not so construe an instrument as to create a repugnance between its several parts-if any construction can be adopted by which all of the provisions can stand and be harmonized. This rule applies to this case, and differentiates this case from the case of -Murphy v. Gabbert, supra, where there was a necessary repugnance between the .granting clause and the intention clause, one of which had to give -away and the other prevail, and the intention clause was given effect.

In Rines v. Mansfield, 96. Mo. 394, the granting clause was to “Elizabeth S. Mansfield, his children and assigns forever. ’ ’ The habendum clause was to £ 1 Elizabeth S. Mansfield, his heirs and assigns forever.” It was held that the word “ children” in the granting clause was used in the sense of “heirs,” the habendum clause being proper matter of reference to ascertain the grantor’s intention. It was also stated that the principal question in the ease was whether Mrs. Mansfield took a fee or was only a tenant in common with her children, and it was held, upon the authority of Green v. Sutton, 50 Mo. 1. c. 192, that if there are inconsistent provisions in a deed, some indicating absolute power of disposal and others creating only a life estate, the deed must be construed as creating a fee.

Without stopping to analyze this case or to inquire whether it is in line with later decisions of this court, it is enough now to say that it is not a controlling precedent in this case, for the reason, as above pointed out, that there is no necessary repugnance between any of the provisions of this deed.

In Fanning v. Doan, 128 Mo. 323, the grant was to “ Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever.” The plaintiff contended that the deed vested a fee simple estate in Mrs. Doan and her heirs by John Doan, while the defendant contended that the deed created a fee tail, which our statute converted into a life estate in Mrs. Doan, with a remainder in fee in her children begotten by John Doan, the effect of which was that in case of a failure of that line of descent the property would revert to the grantor and his heirs. The court called attention to the fact that estates tail, with their inalienable and reverter incidents aforesaid, are obnoxious to our people, and held that the words “her heirs by John Doan” should be construed as words of description and not of limitation, and that Mrs. Doan and her children (she had two by a former marriage and four by her marriage with John Doan) took as purchasers an estate in fee simple as tenants in common. No such condition is present in this ease, and hence that case does not apply to the case at bar.

This is sufficient to dispose of the contention that there is a repugnance in the warranty deed between the granting clause and the intention clause. There is no such repugnance claimed to exist in the quitclaim deed.

It is contended, however, that the use of the word “assigns” in the granting and habendum clauses of the warranty deed, and in the habendum clause of the quitclaim deed, gives Mrs. Doan the right to convey the whole estate and that her heirs are entitled to only so much as she did not alien, and in 'this case as she aliened the whole property, her heirs got nothing. This contention is completely negatived by the case of Davidson v. Manson, 146 Mo. '608, where it was held that the use of the word “assigns” did not have the effect of enlarging what would otherwise be a life estate into a fee simple.

It is further argued that a quitclaim deed is only an abandonment of a claim, and that an estate tail can not be created by such a deed, the argument being that an estate tail must be built up and can not be accomplished by a mere abandonment. Counsel frankly confess an inability to cite any adjudication in support of this contention, nor is it believed that any can be found. The infirmity of the contention lies at the root of the first premise. A quitclaim deed is not a mere release. It has the effect of completely transferring whatever title the. grantor had to the persons named as grantees, and of giving to each the interest specified. A trust estate, as well as an estate tail or in fact any kind of a legal tenure, may be built up by such a conveyance. Such a conveyance affects only the liability of. the grantor if the grantees do not acquire a good title.

The sum of the matter is that the warranty deed conferred a life estate upon Mrs. Gunn, cut off the husband’s right to the possession during his wife’s life and during the coverture, and vested a remainder in fee in the heirs of Mrs. Gunn; and the quitclaim deed had the same effect except as to the husband’s right of possession, which, however, is immaterial now as that right terminated with the death of the wife. This being true the mortgage made, by Mrs. Gunn and her husband covered only the wife’s life estate and the husband’s right to possession, and this was all the plaintiff acquired by the foreclosure of the mortgage, and as all of these interests terminated with the death of the wife, the plaintiff showed no title or right of possession, and therefore the judgment of the circuit court is right, and hence it is affirmed.

All concur.