Garrett v. Wiltse

161 S.W. 694, 252 Mo. 699, 1913 Mo. LEXIS 132

• Court: Supreme Court of Missouri
• Decided: December 6, 1913
• Status: Published

Opinion

LAMM, J.

This is a suit under section 650, Revised Statutes 1899, to try and determine title to the west half of the northeast quarter of section 2, township 56, range 34, containing eighty-three acres situate in Buchanan county.

The case is this: All parties claim under William M. Whitson, deceased, the common source of title. In 1893 William conveyed by warranty deed, duly recorded, to his married daughter, Laura Alice Garrett, “and heirs,” for a consideration of five dollars. (This deed is the bone of contention and its terms will hereafter appear.) At the date of that conveyance Laura Alice had three children. Eight years afterwards, in March, 1901, Laura Alice and her spouse, Richard M., by warranty deed put.of record, conveyed to defendant for a consideration of $3500, and put him in possession. At the date of this latter deed another child, Dixie, had been born to her and Richard. This child died prior to suit. Both deeds purport to convey the whole title. In 1908, Laura Alice being yet alive, her said spouse and two of her said children in being when Whitson conveyed to her, and the husband of one now dead, brought this suit to establish an interest in the land.

The court decreed that Laura Alice took title under the Whitson deed as tenant in common with her three children then in being — one fourth to each. Further, one of said children, a married daughter, having since died and left no children, it was adjudged that defendant stood seized as grantee of Laura Alice of an undivided one-fourth plus an undivided one-thirty-second, the latter coming to Laura Alice as heir of her deceased daughter and passing' to defendant under her said warranty deed; and, on the theory indicated, adjudged to plaintiffs each a specified undivided interest as tenants in common.

Other terms of this decree may become material later on, if we hold against defendant’s principal contention presently stated.

The ease runs on the theory that defendant bought in good faith for full value and took and held possession under his deed claiming the fee; so that, unless the deed from Whitson, ex vi termini, is to be construed as notice of an interest in the “heirs” of Laura Alice, he had no notice of any such interest, this notwithstanding there was ¡testimony showing declarations of Whitson made before and at the time of the execution of his said deed to the effect that he intended to tie the land up so Laura Alice and her spouse could not convey the fee, and later declarations to the effect that he had done so. But none of these verbal acts or declarations were brought home to defendant. His counsel in due time objected to them and, the trial court reserving its ruling, the record shows that at the close of the case the objections were neither ruled on nor was the decree founded on the testimony objected to. It was founded on the face of the deed itself.

The main question is: (1) Did the deed from Whit-son to Laura Alice, on its face, and by virtue of its terms, convey the whole title to her? Defendant contends it did. Plaintiffs contend contra. The court held with plaintiffs, and defendant appeals.

A subsidiary question is: (2) If we refuse to follow the court’s construction of the deed but hold contra and with defendant, then (this not being a suit in equity to reform the Whitson deed and the intentions and declarations of the grantor aliunde the deed not having been brought home to defendant before his purchase so as to charge him with notice) is the testimony of grantor’s said intentions and declarations admissible against defendant?

There are other nice questions arising on other hypotheses (for instance, whether Bichard M. is bound on the covenants of warranty in his deed to defendant, whether Laura Alice did not take a life estate under the Whitson deed, and whether the “heirs” did not take as a class which opened and let in the child born after such deed and dying before suit) but none of therfi are important if we hold with defendant on the two first formulated. To those we address ourselves.

The Whitson deed, omitting acknowledgment not questioned, best speaks for itself (we italicize the words on which the court’s construction must stand or fall), viz.:

“ Warranty Deed. This deed, made and entered into this twenty-fifth day of March, in the year of our Lord, eighteen hundred and ninety-three, by and between William M. Whitson (a widower) of the county of Buchanan and State of Missouri, of the first part, and Mrs. Laura Alice Garrett and heirs of the county of Buchanan and State of Missouri of the second part.

“Witnesseth: That the said party of the first part, for and in consideration of the sum of five ($5.00/100') dollars, to him in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, has given,, granted, bargained and sold, and by these presents does give, grant, bargain, sell, convey and confirm unto the said parties of the second part, and to their heirs and assigns forever, the certain tract, piece or parcel of land, lying and being* in the county of Buchanan and State of Missouri, to-wit:

“The west half of the northeast quarter of section No. two (2) in township fifty-six (56) of range thirty-four (34) containing eighty-three acres of land.

“To have and to hold the said tract, piece or parcel of land with all the privileges and appurtenances-thereunto belonging, or in anywise appertaining unto-her the said party of the second part, .and to her beirs and assigns forever; and tbe said party of tbe first part for bimself, bis beirs, executors and administrators, does covenant and agree that be will warrant and forever defend tbe title to the said tract, piece or parcel of land, and every part thereof, unto her the said party of the second part, her heirs and assigns, against tbe lawful claim or claims of all persons, whomsoever.

“In testimony whereof, tbe said party of tbe first part has hereunto set bis band and seal tbe day and year first herein written. W. M. Whitson (Seal).”

Assuming that the “premises” of a deed are those parts preceding the habendum clauses (Utter v. Sidman, 170 Mo. 1. c. 294) it will be observed that the words, ‘ ‘ and heirs, ’ ’ are used in that part of the premises reciting the parties. When we come to the granting clause the plural form is used for nouns and pronouns in connection with the second party (thus, “parties” and “their beirs”), and when we come to the haben-dum and warranting clauses the singular form is used (thus, “her, the said party of the second part and to. her beirs,” and “unto her, the said party of the second part, her heirs and assigns”).

On such record we are of opinion the court erred in construing the deed, and that, under accepted rules of construction, the fee simple estate passed to Laura Alice Garrett. This because:

I. (a) Not only is the general maxim applicable, viz., that the intention of the man is the soul of the instrument (animus hominis, etc.), but the guiding Conveyance: rules of construction for both deeds and wills are that the intent must be got at and given effect (if not in contravention of some positive rule of law), and that words used are to be understood in the sense indicated by the whole instrument, i. e., that the intent'must be gathered, not from one clause or another, bnt from the fonr corners of the instrument. [Chew v. Keller, 100 Mo. 1. c. 369; Utter v. Sidman, supra.]

Applying those cardinal rules, we must take the words of grantor in all the clauses of his deed as indicating his intention. Much of the old learning concerning the stress to be put on one clause of a deed over another and concerning the weight and significance to be given words because they appear in one clause and not in another is exploded. Commenting on the modern as distinguished from the old doctrine in that regard, it was well said by Marshall, J., in Utter v. Sidman, supra: “The modern rule, which prevails in this State, is much simpler and much more calculated to carry out the wishes of the grantor. The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it no matter in what part of the instrument it is found.”

(b) The words “and heirs,” used in the premises of the deed, following Laura Alice’s name, are stressed as of significance by respondent; but those HeirsW°rd words have no office to cut down her estate ^ess ^an a ^ee- Thny point the other way. The word “heirs” connects itself logically with the concept of inheritance, with the idea of an ancestor and descent cast; for no man is heir to the living man, Nemo est haeres viventis. Accordingly, at common law the word “heirs” was necessary to pass to a grantee an estate of inheritance. Without it the estate conveyed was for life. True, it is no longer necessary to use the word “heirs” to pass a fee simple. The common law in that regard is exploded by section 2870, Revised Statutes 1909, reading:

“The term ‘heirs,’ or other words of inheritance, shall not he necessary to create or convey an estate in fee simple, and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.”

Bnt whilst the nse of the word “heirs” is not now essential in passing a fee to the named grantee, yet its nse or that of the words “and heirs” or “heirs and assigns” is not to be allowed, under accepted rules of law, as in anywise making doubtful the intent of a grantor to pass a fee simple title to the named grantee. [Gannon v. Albright, 183 Mo. 1. c. 248 et seq.] Such words, unless controlled or modified by the context, bnt hark back to and connect themselves with the usages, the learning and the rules of common law conveyancing. They are highly technical and have a fixed meaning and when used in conveyancing, unless manifestly controlled by the context, as said, are held to be words of limitation and not words of purchase. [21 Cyc. 418.] Words of limitation, in this technical sense, mean words “which do not give the estate imported by them originally to the heirs .... described, or to whom they are expressly directed, but only extend the ancestor’s estate ... to an estate of inheritance descendible to the heirs described. . . . ” [Fearne on Rem., 77.] And on page 78: “When the words heirs, etc., operate only to expand an estate in the ancestor, so as to let the heirs described into its extent and entitle them to take derivatively, through or from him, as the root of succession, or person in whom the estate is considered as commencing, they are properly words of limitation; but when they operate only to give the estate imported by them, to the heirs described, originally and as the persons in whom that estate is considered as commencing, and not derivatively from or through the ancestor, they are properly words of purchase. ... In general, words of purchase are those, by which, taken absolutely without reference to, or connection with, any other words, the estate first attaches, or is considered as commencing in the person described by them; whilst words of limitation operate by reference to or connection with other words, and extend or modify the estate given by those other words.”

Undoubtedly the words “and heirs” may he used in deeds and wills in the sense of sons, daughters and children, etc., that is', as words of purchase, when the context demands such construction, but the burden is thrown upon him who contends they are words of purchase to rebut the presumption that they are used as words of limitation, i. e., as intended to mean not individuals but quantity of estate and descent, which in a fixed legal sense they import, and the intent not to use the words in their legal and fixed sense must be unequivocal and not to be misunderstood. [Guthrie’s Appeal, 37 Pa. St. 13 et seq.]

We conclude, then, that respondent’s case does not prosper on the theory of a controlling significance in his favor in the use of the words “and heirs” in the premises of the deed.

Look at it from another viewpoint. As said, there were three children in being, born of Laura Alice by Richard, her husband, at the time of the Whitson deed. Now, in construing a deed it is sometimes worth while to take into account what the grantor should say but does not say as well as what he does say in getting at his intent. This grantor in making a conveyance on which, when spread of record, the world might act, named none of those children. If he desired them to take a present interest as tenants in common with their mother why did he not say so and name them? Is that not the usual way? Why, in dealing with grandchildren, did he ambush and screen his intent by use of a term importing to the contrary? In speaking to that phase of the matter the words of Valliant, J., in Tygard v. Hartwell, 204 Mo. 1. c. 206, are apposite thus: “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 created. [Kinney v. Mathews, 69 Mo. 520; Rines v. Mansfield, 96 Mo. 394.]”

(c) When we come to further consider the granting clause of the deed, we find plural forms are used, viz., “parties of the second part,” “parties of the second part and to their heirs and assigns forever. ’ ’ Much second Part, is made of that feature. But we think it loose and unsound construction to give to those awkward and inartificial grammatical forms the labored significance insisted upon by-learned counsel for respondent. Their argument runs after this fashion: That the phrase “parties of the second part” should be held to import more than one grantee, to-wit, the heirs of Laura Alice then in being. Now, even in construing public statutes, the rule is to include the plural in the singular number and vice versa. Likewise with gender, when the form is masculine it includes the feminine. But it would be unprofitable to pursue the matter from a philosophical standpoint and point out why in so grave a matter as title the plural form is of little value. The slips of the pen are too many in slipshod conveyancing to hinge a decree alone on “parties” and “their heirs.” In this case, however, let the grantor tell his own meaning. To do so is allowable exposition; for does not every man know what he wants to say better than the other fellow? It will be perceived that presently he recurs to the same subject-matter in the habendum elanse and therein he makes all plain by speaking of “her, the said party of the second part,” and “to her heirs and assigns forever” — not once bnt twice — -and it mnst be held that whatever ambiguity arises by the prior nse of the plnral number in the granting clause is dissipated by the nse of the singular number in the 'habendum clause. Moreover, why should Whitson not warrant to his grandchildren as well as to their mother,, if he intended to grant to them? If his bounty took them in, why did he exclude them in his covenants of assurance ? Why caress with one hand and smite with the other? To hold otherwise than as indicated would contravene .a settled rule of construction, and put a ,, , , Habendum Clause. harsh and strained construction on the ___ deed taken as- a whole. It would magmiy a pinprick of mere possible inadvertence into pivotal and controlling substance, and build this deed up around a shadowy speculation. We think we are on safe ground to say that whatever was the technical function of the habendum clause of a deed in olden times, its present office may be allowed to be to clear up the conveyance by clarifying and removing ambiguities, and smoothing away inconsistencies. It will even control or modify the granting clause when by such control or modification the intent of the grantor as expressed in his words is made plain and effectuated. [Utter v. Sidman, 170 Mo. 284, and cases therein cited and analyzed; Linville v. Greer, 165 Mo. 1. c. 397; Grooms v. Morrison, 249 Mo. 1. c. 554; Rines v. Mansfield, 96 Mo. 394; Williamson v. Brown, 195 Mo. 1. c. 337; McCullock v. Holmes, 111 Mo. 445; Meacham v. Blaess, 141 Mich. 258; Green v. Sutton, 50 Mo. 1. c. 192.]

II. The conclusions already reached and announced bring us to the final question: What proba-live force is to be given to the declarations (herein-before mentioned) of Whitson, made before, at, and after his conveyance to Lanra Alice?

Mark, we are not dealing with a case wherein Whitson is suing’ his daughter in equity to correct his ■deed, or wherein the children of Laura Alice are suing their mother to correct such deed on some equita-Evidence Deed: Aliunde of jvieanmg. ble ground like mistake, or wherein the children are suing the mother in equity (before her conveyance) to adjudge ti-tie as between themselves. The case up is one against an innocent purchaser of the land, who dealt with it and the mother on the strength of the title the deed imported to convey to her by its own words, and not otherwise — dealt on the full faith and credit due the record of the deed, and not otherwise. Under such circumstances, for the trial court to get at the intent of grantor (not from the words he set down in the instrument at the time to be presently blazoned forth on the records in the office of the recorder of deeds, but) from the admissions of Whitson of which defendant had no notice, will not.do. Defendant was bound to take notice of the terms of the Whitson deed when recorded. [R. S. 1909, sec. 2810; Seilert v. McAnally, 223 Mo. 1. c. 518.] Whitson contemplated that form of notice when he executed his deed. The law held the same end in view in the registry acts. He is charged, too, with constructive notice of everything contained in recorded deeds that lie in and make up the chain of title under which he holds. [Case v. Goodman, 250 Mo. 1. c. 115, and cases cited.] So, if he had had actual notice that his grantor held a base fee, or one subject to outstanding equities or rights not disclosed by the deed records or that there was a mistake in the deed, that would be another matter. But, as said, no such case is here; and we know of no principle of real estate law that would' permit the title of a bona-fide purchaser to be affected or impaired in the way proposed. As to defendant, presumably, Whitson wrote into that deed all he intended to. Since the mitten word remains and the spoken word flies, when parties sit down to write a contract they are presumed to set forth the whole of it. Defendant could rest on that presumption of law; for no man is held to be, or need to be, wiser than the law. He is presumed to know it, but not to be wiser than it. If, then, the deed when taken as a whole bore on its face notice of a base fee or lesser estate than a fee in his grantor, or words putting defendant on inquiry, he must abide the fact or pursue the inquiry. But we have held the contrary to be the fact in the first paragraph, and must rule the offered testimony of no probative force.

The disposition made of questions discussed, makes other questions dealt with in briefs unimportant.

Let the judgment be reversed and the cause remanded with directions to find against plaintiffs and decree title in defendant. It is so ordered.

All concur.