BROWN', J.
— This is an ordinary action to quiet and determine the title to eighty acres of land in Greene county, in which each of the plaintiffs by their ■petition claim an undivided one-sixth interest. The defendant is in possession and pleads the ten-year Statute of Limitations, and also' pleads a deed from plaintiff Tillery. From a dismissal as to plaintiff Tillery and a decree below for plaintiff Gray, defendant prosecutes this appeal.
Elijah Gray is the common source of title, and as-the case turns upon the construction of a deed which he and his wife made to his daughter-in-law, Sallie Gray, said deed is here set out in full:
Know all men by these presents, That we, Elijah Gray and Anna Gray' his wife, of the county of Greene, in the State of Missouri, have this day, for and in consideration of the sum of two dollars to the said Elijah Gray and Anna Gray, his wife, in hand paid by Sallie Gray, of the county of Greene in the State of Missouri, granted, bargained and sold, and by- these presents do grant, bargain and sell unto the said Sallie Gray and her heirs by James P. Gray the following tracts or parcels of land situate in the county of Green in the State of Missouri: (Description omitted.)
To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining unto the said Sallie Gray and her heirs by James P. Gray, her heirs and assigns forever, I, the said Elijah Gray hereby covenanting to and with the said Sallie Gray, her heirs and assigns for herself, her heirs, executors and administrators to warrant and defend the title to the premises hereby conveyed against the claims of every person whatsoever. [Testimonium clause and signatures omitted.]
Tbe plaintiffs are children of tbe Sallie Gray and James P. Gray named in tbe foregoing deed. There were also'five other children born to Sallie and James P. Gray, but one of them died in infancy. The father, James P., died November 15, 1887, but the mother, Sallie Gray, survives.
On July 24, 1884, Sallie Gray, with her husband James P., made a warranty deed to defendant Ward, purporting to convey the whole title to the land in con[295]*295troversy. On March 31, 1888, said Sallie Gray, together with four of her children, Susan, Annie, Lizzie and Fanny, made a quitclaim deed to defendant; and on February 7, 1889, the plaintiff Margaret Gray Tillery, also quitclaimed her interest in the land to defendant.
The plaintiff Charles E. Gray was born March 13, 1879, and attained the age of twenty-one eight years before the institution of this action. Defendant entered into actual possession of the land on July 24, 1884, under the deed from Sallie Gray and husband; and has been in possession ever since. Plaintiff Tillery, while admitting that her signature to the deed of February 3.7, 1889’, is genuine, contends that she received no consideration for said deed, has no recollection of having executed the same, and that her signature was procured by fraudulent representations of defendant. At the conclusion of the evidence, attorneys for defendant requested permission to make an oral argument on the alleged invalidity of the deed by plaintiff Tillery; whereupon the court announced that it would find the issues against her. Plaintiff Tillery, over the objection of defendant, then dismissed the suit as to herself; and defendant saved his exceptions.
The defendant contends that the court committed error in allowing plaintiff Tillery to take a nonsuit; and that error was also committed in adjudging* the plaintiff Charles E. Gray to be the owner of an estate in remainder to an undivided one-sixth of the land in controversy.
OPINION.
I. "We think the court did not err in permitting the plaintiff Tillery to take a voluntary nonsuit as to herself after the court had announced its intention to find the issues against her. 'Where a plaintiff takes a nonsuit after the court has indicated its intention to give an instruction in the nature of a. demurrer to [296]*296the evidence, hut before such instruction is actually given, the nonsuit is voluntary. [McClure v. Campbell, 148 Mo. 96; Carter v. O’Neill, 102 Mo. App. 391.]
Moreover, it is contended by defendant that in a siut of this character, after he had filed his answer, setting up a claim to the real estate, and asking that his title be quieted, plaintiff Tillery was not entitled to dismiss her suit and thereby deprive him of the right to have his title adjudicated in this action; but this point must also be ruled against defendant. Section 2536, Revised Statutes 1909, provides that suits of this character shall be governed by our Code of Civil Procedure ; and Section 1980, Revised Statutes 1909, being part of said code, permits the plaintiff to dismiss his suit at any time before the same is finally submitted to the jury or to the court sitting as a jury. An execution to this rule is found in section 1878, Revised Statutes 1909, permitting a defendant who has filed a set-off or counterclaim to proceed to judgment on same after plaintiff has dismissed his original cause of action. The answer of defendant in this case cannot properly be denominated a set-off or counterclaim, and therefore the plaintiff Tillery was entitled to take a nonsuit. [Jones v. Moore, 42 Mo. 413; Lanyon v. Chesney, 209 Mo. 1, l. c. 9; Hamlin v. Walker, 228 Mo. 611.]
We are not unmindful of the injustice to defendant which arises from permitting plaintiff Tillery to bring this suit and prosecute it to a point where it became apparent that a judgment would be given against her and then by taking a voluntary nonsuit, reserve the right to bring- another action against defendant, or force him to bring an action against her in order to quiet his title; but the Legislature has failed to provide any remedy for abuses of this kind, and until it does so, we are forced to construe the law as we find it.
[?]*?II. This brings us to the main feature of the ease. Defendant contends that the deed of Elijah Cray and wife to his daughter-in-law created a tenancy in common in said Sallie Gray and her six children., among whom is the plaintiff Charles E. Gray, and that as defendant has been in possession twenty-eight years and plaintiff Gray has been of full age during eight years of that period, he is barred by the ten-year Statute of Limitations. It is quite clear that said plaintiff would be barred by the ten-year Statute of Limitations if the deed from Elijah Gray created a tenancy in common. [Hinters v. Hinters, 114 Mo. 26 ; Robinson v. Allison, 192 Mo. 366.]
However, we are unable to concur in defendant’s construction of the deed from Elijah Gray and wife to Sallie Gray. The words “to Sallie Gray and her heirs by James P. Gray” occurring in both the granting clause and habendum, have the same meaning as though the deed read “to Sallie Gray and the heirs of her body by James P. Gray,” and manifest a clear intention on the part of grantors to create what was known as an estate tail special, under the common law and statutes of England. [1 Washburn on Real Property (6 Ed.), secs. 199 and 200, and vol. 3, page 534; Tiffany on Real Property, secs. 23 and 25.] The effect of this deed under, the provisions of section 2572, Revised Statutes, 1909, was to vest in said Sallie Gray a life estate only, with -remainder to her children then living and thereafter born to her by her said husband James P. Gray. This doctrine finds support in the following cases: Hall v. French, 165 Mo. 430; Chew v. Kellar, 171 Mo. 215, l.
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN', J.
— This is an ordinary action to quiet and determine the title to eighty acres of land in Greene county, in which each of the plaintiffs by their ■petition claim an undivided one-sixth interest. The defendant is in possession and pleads the ten-year Statute of Limitations, and also' pleads a deed from plaintiff Tillery. From a dismissal as to plaintiff Tillery and a decree below for plaintiff Gray, defendant prosecutes this appeal.
Elijah Gray is the common source of title, and as-the case turns upon the construction of a deed which he and his wife made to his daughter-in-law, Sallie Gray, said deed is here set out in full:
Know all men by these presents, That we, Elijah Gray and Anna Gray' his wife, of the county of Greene, in the State of Missouri, have this day, for and in consideration of the sum of two dollars to the said Elijah Gray and Anna Gray, his wife, in hand paid by Sallie Gray, of the county of Greene in the State of Missouri, granted, bargained and sold, and by- these presents do grant, bargain and sell unto the said Sallie Gray and her heirs by James P. Gray the following tracts or parcels of land situate in the county of Green in the State of Missouri: (Description omitted.)
To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining unto the said Sallie Gray and her heirs by James P. Gray, her heirs and assigns forever, I, the said Elijah Gray hereby covenanting to and with the said Sallie Gray, her heirs and assigns for herself, her heirs, executors and administrators to warrant and defend the title to the premises hereby conveyed against the claims of every person whatsoever. [Testimonium clause and signatures omitted.]
Tbe plaintiffs are children of tbe Sallie Gray and James P. Gray named in tbe foregoing deed. There were also'five other children born to Sallie and James P. Gray, but one of them died in infancy. The father, James P., died November 15, 1887, but the mother, Sallie Gray, survives.
On July 24, 1884, Sallie Gray, with her husband James P., made a warranty deed to defendant Ward, purporting to convey the whole title to the land in con[295]*295troversy. On March 31, 1888, said Sallie Gray, together with four of her children, Susan, Annie, Lizzie and Fanny, made a quitclaim deed to defendant; and on February 7, 1889, the plaintiff Margaret Gray Tillery, also quitclaimed her interest in the land to defendant.
The plaintiff Charles E. Gray was born March 13, 1879, and attained the age of twenty-one eight years before the institution of this action. Defendant entered into actual possession of the land on July 24, 1884, under the deed from Sallie Gray and husband; and has been in possession ever since. Plaintiff Tillery, while admitting that her signature to the deed of February 3.7, 1889’, is genuine, contends that she received no consideration for said deed, has no recollection of having executed the same, and that her signature was procured by fraudulent representations of defendant. At the conclusion of the evidence, attorneys for defendant requested permission to make an oral argument on the alleged invalidity of the deed by plaintiff Tillery; whereupon the court announced that it would find the issues against her. Plaintiff Tillery, over the objection of defendant, then dismissed the suit as to herself; and defendant saved his exceptions.
The defendant contends that the court committed error in allowing plaintiff Tillery to take a nonsuit; and that error was also committed in adjudging* the plaintiff Charles E. Gray to be the owner of an estate in remainder to an undivided one-sixth of the land in controversy.
OPINION.
I. "We think the court did not err in permitting the plaintiff Tillery to take a voluntary nonsuit as to herself after the court had announced its intention to find the issues against her. 'Where a plaintiff takes a nonsuit after the court has indicated its intention to give an instruction in the nature of a. demurrer to [296]*296the evidence, hut before such instruction is actually given, the nonsuit is voluntary. [McClure v. Campbell, 148 Mo. 96; Carter v. O’Neill, 102 Mo. App. 391.]
Moreover, it is contended by defendant that in a siut of this character, after he had filed his answer, setting up a claim to the real estate, and asking that his title be quieted, plaintiff Tillery was not entitled to dismiss her suit and thereby deprive him of the right to have his title adjudicated in this action; but this point must also be ruled against defendant. Section 2536, Revised Statutes 1909, provides that suits of this character shall be governed by our Code of Civil Procedure ; and Section 1980, Revised Statutes 1909, being part of said code, permits the plaintiff to dismiss his suit at any time before the same is finally submitted to the jury or to the court sitting as a jury. An execution to this rule is found in section 1878, Revised Statutes 1909, permitting a defendant who has filed a set-off or counterclaim to proceed to judgment on same after plaintiff has dismissed his original cause of action. The answer of defendant in this case cannot properly be denominated a set-off or counterclaim, and therefore the plaintiff Tillery was entitled to take a nonsuit. [Jones v. Moore, 42 Mo. 413; Lanyon v. Chesney, 209 Mo. 1, l. c. 9; Hamlin v. Walker, 228 Mo. 611.]
We are not unmindful of the injustice to defendant which arises from permitting plaintiff Tillery to bring this suit and prosecute it to a point where it became apparent that a judgment would be given against her and then by taking a voluntary nonsuit, reserve the right to bring- another action against defendant, or force him to bring an action against her in order to quiet his title; but the Legislature has failed to provide any remedy for abuses of this kind, and until it does so, we are forced to construe the law as we find it.
[?]*?II. This brings us to the main feature of the ease. Defendant contends that the deed of Elijah Cray and wife to his daughter-in-law created a tenancy in common in said Sallie Gray and her six children., among whom is the plaintiff Charles E. Gray, and that as defendant has been in possession twenty-eight years and plaintiff Gray has been of full age during eight years of that period, he is barred by the ten-year Statute of Limitations. It is quite clear that said plaintiff would be barred by the ten-year Statute of Limitations if the deed from Elijah Gray created a tenancy in common. [Hinters v. Hinters, 114 Mo. 26 ; Robinson v. Allison, 192 Mo. 366.]
However, we are unable to concur in defendant’s construction of the deed from Elijah Gray and wife to Sallie Gray. The words “to Sallie Gray and her heirs by James P. Gray” occurring in both the granting clause and habendum, have the same meaning as though the deed read “to Sallie Gray and the heirs of her body by James P. Gray,” and manifest a clear intention on the part of grantors to create what was known as an estate tail special, under the common law and statutes of England. [1 Washburn on Real Property (6 Ed.), secs. 199 and 200, and vol. 3, page 534; Tiffany on Real Property, secs. 23 and 25.] The effect of this deed under, the provisions of section 2572, Revised Statutes, 1909, was to vest in said Sallie Gray a life estate only, with -remainder to her children then living and thereafter born to her by her said husband James P. Gray. This doctrine finds support in the following cases: Hall v. French, 165 Mo. 430; Chew v. Kellar, 171 Mo. 215, l. c. 225; Hunter v. Patterson, 142 Mo. 310; Lehndorf v. Cope, 122 Ill. 317.
The defendant calls our attention to the cases of Fanning v. Doan, 128 Mo. 323, and Franklin v. Cunningham, 187 Mo. l. c. 195, in which this court construed deeds containing recitals somewhat like the one to Mrs. Gray to create tenancies in common; but [298]*298those eases are distinguishable from the one at bar. In those cases from the relation of the grantors to the grantees, as well as from the phraseology of the deeds themselves, the intention to create a tenancy id. common is made reasonably clear.
As the deed from Elijah Gray and wife conveyed only a life estate to Sallie Gray, the remainder vesting in her children then alive and thereafter born to her through her marriage with James P. Gray, and the plaintiff Charles E. Gray being one of six children by said marriage, and not having parted with his interest thus derived, the judgment of the trial court decreeing him to have an undivided one-sixth interest in remainder'in the land in controversy, subject to the life estate conveyed by his mother, was for the right partjr, and is therefore affirmed.
Kennish, P. Jand Ferriss, J., concur.