Hooks v. Spies

583 S.W.2d 569, 1979 Mo. App. LEXIS 2364
CourtMissouri Court of Appeals
DecidedMay 29, 1979
DocketNo. 39552
StatusPublished
Cited by12 cases

This text of 583 S.W.2d 569 (Hooks v. Spies) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hooks v. Spies, 583 S.W.2d 569, 1979 Mo. App. LEXIS 2364 (Mo. Ct. App. 1979).

Opinion

SMITH, Judge.

Defendant appeals from an adverse judgment in a quiet title action. We affirm.

The land in question is a 17.34 acre tract in Lincoln County. For our purposes title commences with a deed for the land from Leon Lovell and Phyllis L. Lovell, his wife, to Millie Hermann, a single person, dated October 1, 1955. Millie Hermann was the secretary and straw party for Herbert D. Hooks, Sr. The Lovell deed described only the 17.34 acre tract. As straw party for Herbert D. Hooks, Sr., who invested in real estate, Millie Hermann also executed a deed of trust in June 1955 to Oliver Erbs as trustee and Emil Klaas and Lucille Klaas, his wife, and Charles Gillham and Virginia Gillham, his wife, the payees of certain notes. This deed of trust described the real estate covered by the deed of trust in detail. The land involved was for subdivision development and the deed of trust provided for release of portions of the land covered by the deed of trust upon payment of the notes covering such land. All the land covered by the deed of trust was located in Lincoln County. The 17.34 acres was not included in the land covered by the deed of trust. Following the death of Herbert D. Hooks, Sr., Millie Hermann executed, in June 1960, a quitclaim deed to Esther Hooks (Herbert’s widow.now deceased) a V2 interest, to Herbert D. Hooks, Jr. and Barbara Ann Zartman (now Roberts) (Herbert’s children) a ¼ interest each in certain land in Lincoln County. The land conveyed was described in detail and included the 17.34 acres as well as all of the land covered by the deed of trust, plus some additional land. The quitclaim deed contained the following language:

“The intention of the undersigned Millie Hermann being to transfer title to any and all real estate owned by her in Lincoln County, Missouri, and it is hereby agreed that in the event any real estate now vested in her name in Lincoln County, Missouri, is not specifically above described, the same is nontheless hereby conveyed
“Grantor further agrees to execute such further documents, instruments and conveyances as may be necessary to effectuate transfer from her to Grantees herein of all real estate owned by Grantor in Lincoln County, Mo.
“Those lots in the above described subdivisions which have heretofore been conveyed by Charles Gilham (sic) and Emil Klaas, and Millie Hermann, which conveyances are recorded in the Recorder’s Office of Lincoln County, Missouri, are hereby excepted.”

[571]*571It is apparent, and Millie Hermann so testified, that the purpose and intent of the 1960 deed was to transfer all property which she held as a straw party for Herbert D. Hooks, Sr. to his heirs at law.

In July 1961 the notes secured by the 1955 deed of trust were in default and a trustee’s sale was advertised. That advertisement specifically described the property to be sold and explicitly excluded those lots originally covered by the deed of trust which had been sold and released from the deed of trust. Since the 17.34 acres was not covered by the deed of trust, it, of course, was not described in the advertisement of trustee’s sale.

On August 10, 1961, the deed which created this lawsuit was executed by the widow of Herbert D. Hooks, Sr. and his children and their spouses. That deed conveyed certain property to the Klaas’, the Gillham’s and a bank president (the assign-ee of the Klaas notes). The land conveyed was specifically described. The specific description was of the land covered by the deed of trust and the advertisement, and specifically excluded certain land which had been expressly excluded in the deed of trust and certain land “previously released of record.” The 17.34 acres was not specifically described in the deed. The deed did, however, contain the following language:

“The intent and purpose of this Deed is to Quit Claim to grantees herein all real estate quit-claimed to parties herein by Millie Hermann by Quit-Claim Deed dated June 17, 1960 and recorded in Book 219 at page 597 in the Recorder’s Office of Lincoln County, Mo., excepting therefrom those tracts, lots or parcels which had been released from the Deed of Trust held on said premises by Grantees herein. This instant Quit-Claim deed is likewise meant to convey those premises on which said Deed of Trust was foreclosed, said Deed of Trust being recorded in Book 190 at Page 597 in the Recorder’s Office of Lincoln Co., Mo.”

Defendant claims that the first clause of the first sentence served to convey the 17.34 acres to her claimed predecessors in title. In the view we take of this case it is unnecessary for us to examine the validity of defendant’s chain of title from the grantees of the August 10,1961 deed for we conclude, as did the trial court, that that deed did not convey title to the 17.34 acres.

The unambiguous language of the instrument governs over any extrinsic evidence of the parties’ intent. If that language is clear and unambiguous, the intent is gathered from the instrument. “It is what the grantor said, and not what he intended to say.” White v. Meadow Park Land Co., 240 Mo.App. 683, 213 S.W.2d 123 (1948) [4-6]. Bay v. Stout Sign Co., 301 S.W.2d 786 (Mo.1957) [1-4]; Pfeiffer v. Pfeiffer, 355 S.W.2d 934 (Mo.1962) [1-5].

Each case “ ‘must be considered apart from any other case in order to ascertain its meaning in the light of the facts as they were known and considered’ by the grantor and auxiliary rules of construction should not be employed where the intention of the grantor is clearly expressed.” Knox College v. Jones Store Co., 406 S.W.2d 675 (Mo.1966) [5-7]. That intention should be ascertained from the whole instrument as gathered from the “everyday, good sense” of the language. Knox College, supra. [1-4].

Where, however, there is an ambiguity in the description of the land intended to be conveyed “the identity of the property must be gathered from the intention of the parties as shown by the instrument itself and the accompanying circumstances, such as those surrounding and connected with the parties and the land at the time. Words may, if necessary, be qualified by intendment, and particular clauses and provisions qualified, transferred, or rejected in order to ascertain the intention.” Ashauer v. Peer, 147 S.W.2d 144 (Mo.App.1941) [2-4]. The court should assume the position of the parties to the deed as nearly as possible, consider the circumstances of the transaction and read and interpret the words used in that light. Farrow v. Trickey, 374 S.W.2d 49 (Mo.1963) [1-3], And it was stated in Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660 (1941):

[572]*572“The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities to be cleared up by resort to the intention of the parties as gathered, from the instrument itself, the circumstances attending and leading up to its execution and the subject matter and the situation of the parties as of that time.” [5].

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Bluebook (online)
583 S.W.2d 569, 1979 Mo. App. LEXIS 2364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hooks-v-spies-moctapp-1979.