Williamson v. Brown

93 S.W. 791, 195 Mo. 313, 1906 Mo. LEXIS 253

• Court: Supreme Court of Missouri
• Decided: March 30, 1906
• Status: Published

Opinion

LAMM, J.

— ■ Lemuel Wilkinson and his wife, Orpha, immigrated to Putnam county, Missouri, about the year 1867, and resided there and in a neighboring county until they died, Lemuel dying in 1879 and Orpha in 1897. Orpha Wilkinson was twice married, being united by her first marriage bonds to one Brown, and bearing two sons to him, to-wit, Nevill and James B., the latter, respondent here. Lemuel Wilkinson was the husband of a former wife, Hannah, who died about the breaking out of the Civil War. By Hannah, he had two sons and one daughter, who, living to maturity, begot children and died. These children, grandchildren of Lemuel Wilkinson, are appellants here. The controversy, one pertaining to real estate, thus becomes one between the grandchildren of Lemuel Wilkinson, on one side, and his stepson, James B. Brown, who claims to hold in his own right and by conveyance from his brother Nevill, on the other side.

This suit is to determine the estate, title and interest of the respective parties in and to, and to recover possession of certain parcels of land in Putnam county, Missouri, described in the petition as follows: the southwest quarter of the southwest quarter of section 15, and the north half of the northwest quarter of the northwest quarter of section 22, and fifteen acres and twenty-four poles oft the west side of the northwest quarter of the northwest quarter of said section 22, all in township 66, range 22; and the west half of the northwest quarter of the northeast quarter of the northwest quarter of section 18, in township 66, range 21 — the petition being in two counts, one in ejectment, the other in the nature of a bill in equity to ascertain and determine title — plaintiffs claiming the whole title.

The answer is a general denial with certain affirmative pleas, one being in the nature of a cross-bill asking for affirmative relief, and is to the effect that on the 30th day of September, 1867, one John Hawk, with his wife, executed to Lemuel and Orpha, his wife, a warranty deed conveying the following lands in Putnam county, Missouri: (here follows a description of lands the same as in the petition, except that the fifteen-acre tract, referred to in the petition, is by the answer set down as a nine-acre tract and described as a part of the northeast quarter of the northwest quarter of section 22, commencing at a given point and running with the meandering of Barber creek, and other metes and bounds, not necessary to set forth here; and except, further, that the last tract in the petition is described in the answer as, “also 10 acres out of the northwest corner of the northwest quarter of the northeast quarter of section 18, township 66, range 21.” It may be said at this point that the decree follows the land descriptions in the answer and in the Hawk deed, which seem to be the true ones.) That said deed was for a valuable consideration paid to said Hawk by Lemuel and Orpha Wilkinson. That it was then and there the mutual intention and agreement between the Wilkinsons and Hawks that said deed was to be made so as to convey a life estate .in said land to Lemuel, with remainder to Orpha, so that, her heirs would inherit to the exclusion of his. That by mutual mistake the granting clause of the deed was so written as to convey the fee in said land to Lemuel, but the habendum was written so that Lemuel Wilkinson and Orpha Wilkinson and “her heirs” should have and hold said land; that the parties trusted the scrivener, acting therein for all of them, to write said deed according to their mutual intent and agreement; that they were ignorant and supposed said scrivener had written the deed to evidence their agreement; that said scrivener was John L. Thomas, a justice of the peace, now dead; that the deed, as written, did not express the mutual intent of the parties hut was executed hy Hawk and wife and received hy Lemuel and Orpha Wilkinson under a mutual mistake of fact as to the interests in said land conveyed to Lemuel and Orpha Wilkinson respectively; and that the deed should he reformed so as to conform to the said mutual intent and agreement.

The answer pleads, also, that Nevill Brown and the defendant James R., brothers, are the only children and heirs of Orpha Wilkinson, who died in the year 1897, and that defendant had acquired the interest of Nevill in said land; and, moreover, pleads that Lemuel Wilkinson died in 1879; that all his children are dead; that the plaintiffs are his grandchildren; that their only claim of title in said land is derived from inheritance from said Lemuel, and that Lemuel left a will which has been duly probated and by which he provided and directed that his property, real and personal, should be sold and the proceeds divided among certain legatees; and that plaintiffs are not entitled to the possession of any land of which Lemuel Wilkinson died siezed.

The answer further sets forth that, since the death of Orpha Wilkinson, defendant has been in possession of said land as the owner in fee simple, and fiurther averred that, in consideration of the provisions of the Hawk' deed, the defendant for many years worked and cared for said Lemuel and Orpha Wilkinson in their declining years, performing services of value, to-wit, $1,000.

The prayer of the answer is for general relief and specifically that the Hawk deed be corrected and reformed so as to conform to the said intent and agreement of the parties thereto, and to divest out of plaintiffs and into the defendant all the right, title and interest of plaintiffs in the land.

By reply, plaintiffs admit the execution of the Hawk deed, the deaths of Lemuel and Orpha Wilkinson, that plaintiffs are the heirs of Lemuel, that defendant and Nevill Brown are the only heirs of Orpha who was the widow of Lemuel, and that plaintiffs claim title as heirs of Lemuel Wilkinson; and aver that Lemuel made a will devising said real estate to his own children and to the children of Orpha Wilkinson, in equal shares, subject to a life estate-in Orpha, who held possession, after the death of Lemuel and during her own lifetime, under said will. But they deny every other allegation in the cross-bill. Plaintiffs then say that the cross-bill does not state facts sufficient to constitute a cause of action, that the three-year Statute of Limitations bars the defendant’s cause of action, stated in his cross-bill, and that the ten-year Statute of Limitations is also a bar.

On paper issues thus outlined, the learned chancellor, on a hearing below, found for defendant and reformed the Hawk deed. From this decree, plaintiffs appeal.

At the trial, in addition to the admissions made by the pleadings, the following facts were uncovered:

In 1865 Lemuel Wilkinson and Orpha, his wife, deeded certain real estate in Indiana to the ancestors of some of appellants. These conveyances were made for an inadequate consideration in cash, and, presumably, 'somewhat by way of advancement. He had a married daughter, Charity, whose descendants are also appellants, and who received nothing from her father. Coming to Missouri in 1867, negotiations were opened with John Hawk for the real estate in question, as well as another tract lying close by in Mercer county. The evidence tends to show that Lemuel Wilkinson brought some money with him to Missouri. There is no evidence indicating what means, if any, Orpha Wilkinson had before her marriage to Lemuel, or acquired after-wards. All parties to the Hawk transaction, including the scrivener, are dead except John Hawk and his wife. The deposition of John Hawk was taken and introduced by respondent.

Appellants, to sustain the issues on their part, read in evidence the Hawk deed and rested, and, as one of the principal contentions in the case is over the construction of this deed, we will have it printed in full with this opinion. The form used was a printed blank and certain writing was inserted into the blanks and certain erasures were made and interlineations written •in, which claim attention as of significance. The written portions of the deed appear here in italic type and the erasures and interlineations are shown below. The .■deed, the original of which was exhibited to this court, •is as follows (omitting the acknowledgment):

“KNOW ALL MEN BT THESE PRESENTS, that I, John Hawk and Catherine Hawk, his wife, of the county of Putnam, State of Missouri, have this day, for and in consideration of the sum of one thousand dollars, to the said John Hawk, in hand paid by Lemuel Wilkinson, of the county of Putnam, in the State of Missouri, granted, bargained, and sold, and by these presents do grant, bargain and sell unto the said Lemuel Wilkinson, the following described tracts or parcels of land, situate in the county of Putnam, in the State of Missouri, that is to say: [Here follows description of land sold.]

“To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining, unto the

her

said Lemuel Wilkinson and Orpha Wilkinson, his heirs, and assigns forever, I, the said John Hawk, covenanting to and unto the said Lemuel Wilkinson and

her

Orpha Wilkinson, Ms heirs and assigns for herself, her

MrméyffHñ» heirs, executors and administrators, to warrant and defend the title to the premises hereby conveyed against the claim of every person whatsoever.

“In witness whereof, we have hereto subscribed our names and affixed our seals this 30th day of September, 1867.

“John Hawk.

“Catherine Hawk.”

The testimony of John Hawk is as follows:

“My name is John S. Hawk; my age seventy-one years; I live in Chillicothe, Missouri; am a retired farmer and have no particular business at present. I knew Lemuel and Orpha Wilkinson. They lived in the west end of Putnam county. I got acquainted with them shortly after the Civil War, at which time I sold them the farm on which they lived. It was located partly in Putnam county and partly in Mercer county. There was one eighty of it in Mercer county.

“Q. Now look at this deed and see if you ever saw it before? (Attorney hands witness deed, dated September 30, 1867, signed by John Hawk and Catherine Hawk and recorded in office of recorder of deeds of Putnam county, Missouri, in book 7, at pages 8 and 9.) A. Yes, sir; that is the deed I made to him to the land in the west end of Putnam county. We made him another deed to the land in Mercer county. John L. Thomas, a justice of the peace, now deceased, wrote this deed. This deed was made out but a short time before I got acquainted with Mr. Wilkinson and his wife. I have examined this deed carefully; so far as I can tell it is the same form and writing as it was when I signed it. There have been no changes in it.

“Q. You will note in that deed that provision in it, in the latter part of it, that is to go to her heirs. Do you recollect what was said by the parties at the time it was made and why it was made that way? A. They said it was their desire to have it that way, and I made the deed the way they wanted it. Mrs. Wilkinson said that they wanted it to go to her heirs at their death, that his heirs had had their share.

“Q. Now was he present at the time? A. They were both present if it was at the time of the making of the deed, and I think that was the time. She said that his children had had their share and that it was to go to her heirs. That was the talk at the time the deed was made and they erased one part and put in the provision that it was to go to her heirs. The word ‘ ‘ his ’ ’ was erased and the word “her” was put in. I don’t remember ever talking with Wilkinson about this land thereafter. I suppose the deed to the land in Mercer county mentioned the same provision as to whom it should go at their death as it was all included in one contract.

“Q. Was that the understanding at the time the deed was made that the land was to go to her heirs ? A. Yes, sir. They said how they wanted it and I made the deed the way they wanted it. I think the deed to the Mercer county land was to be drawn the same way. It was all in one contract. We were talking about both tracts as one. We made separate deeds to the land in Putnam and Mercer counties, because the Putnam county justice of the peace, who drew the deed to the Putnam county land, could not take acknowledgments out of his own county. They took possession of this land soon after I sold it to them and they lived there until Wilkinson died. I have no interest whatever in the result of this suit. It is of no interest to me whether the heirs of Lemuel Wilkinson or of Orpha Wilkinson get it. This deed I have referred to was made on the daté it purports to have been made on, in September, 1867. My full name is John S. Hawk, hut I see that I executed the deed in the name of John Hawk which is the way I signed myself in those times.”

As said, the testimony of Hawk was by way of deposition, and, when offered by respondent, plaintiffs objected to a certain question and answer for the reason that the question was leading and suggestive. This objection was overruled.

By one Pauley, it was shown that Lemuel Wilkinson stated, in 1870, or thereabout, that he intended his Mercer county land for “Jim Brown” (respondent) and the Putman county land “for Mr. Jim and Mr. Nev. Brown at his death. They were to care for him and the old lady, and the land was to go to Jim and Nev. Brown at the end of his life.” We deem the evidence of this witness of no probative force and, therefore, omit its details. Defendant also introduced the will of Lemuel Wilkinson, reading thus:

“I, Lemuel Wilkinson, of York township, in the county of Putnam, and State of Missouri, being of sound mind and conscious of the uncertainty of this life, make this my last will and testament — that is to say —

‘ ‘ First, after all my lawful debts are paid and discharged, I give, bequeath, and devise my estate, both real and personal, to my wife, Orpha, during her natural life, after her death it is my will that all my real and personal, property he sold and that sixty dollars of the proceeds he paid to my daughter, Charity Hammer, and fifty dollars to my step-son, James R. Brown, and that the residue of my estate, after making the above payments he divided equally among my three children and two stepchildren, to-wit, James E. Wilkinson, Hezekiah Wilkinson, Charity Hammer, Nevill Brown and James R. Brown.

“I appoint James R. Brown, of the county of Mercer and State of Missouri, executor of this my will.

“In witness whereof, I have signed and sealed and published and declare this .instrument as my will at my home in the township of York, county and State as aforesaid.

“Dated this 29th day of November, 1873.”

It was admitted at the trial that Lemuel Wilkinson lived on the land in controversy and died there, and “that the widow continued to control it until her death . . . since which time it has been in the possession of the defendant.”

Oral testimony was introduced tending to show that Lemuel Wilkinson’s health was very poor; that he was not able to do any work after coming to Missouri; that respondent looked after him and his family and transacted his business; and that he had made small improvements on the land. On cross-examination of one witness, a nephew of respondent, appellants’ counsel identified and introduced certain letters from respondent, one dated August 22, 1893, and directed to someone whose name is not disclosed, but who evidently was interested in the estate and would Seem to be a son of Lemuel Wilkinson. It was written in answer to an inquiry, and refers to Lemuel Wilkinson’s will, to its terms, to the value of the land as $800, to the fact that his mother, Orpha, holds it during her life, and is now in good health, and offers $100 to his correspondent, for his share, adding, “please remember that I am not making you a sure offer as I don’t want to buy,” and refers his correspondent to certain attorneys at Princeton, Missouri, with whom he could correspond, at his choice.

Another letter, written after Orpha Wilkinson’s death to a son of Lemuel Wilkinson, bearing date of January 27,1899, reads as follows:

“Dear Sir: I write you in regard to the matter of your father’s estate. I find since mother’s death that when your father and mother bought the farm on which he died, that he had it deeded to him and her and to her heirs. This you will find from the record at Uhionville, Putnam county, Missouri, John S. Hawk and wife to Lemuel Wilkinson et al. This land is worth about $1,200. Mother paid out of the property allowed her as widow about $200 doctor bill and funeral expenses, tombstone, etc. She lived on the farm and there is a doctor bill against her of $320, I hear. I have bought my brother’s share of the land for $10©. I feel that 1 would be willing to pay you folks what is right if we could agree as I don’t seek an advantage of you if the deed does say so. When you investigate this let me hear from you. Yours.”

This was followed by two more, thus:

“Princeton, Mo., Feby., 1899. “Mr. A. W. Hammer,

“Willow, Indiana.

“Dear Sir: Yours of Feby. 4, 1899, rec’d and in answer would say that I have nothing different to say from what was said in my letter to Hezekiah Wilkinson on the 27th of January. I gave the facts in that letter as to the entire business. In that letter you will notice the debts that are to be paid. You may wonder what became of your grandfather’s money. This should not be a wonder when you remember his nature. He kept his money and would not loan it at good interest and it was used, a few dollars at a time, until gone. He! lost about $300 with a merchant and that scared him out of loaning. Now if you people will all join in a deed to me to the land I will pay $300; I think I could hold the land under the deed as it now stands, but it would cost me about as much and in case you folks recovered, it is more than you would get after all debts and costs are paid. I offer this as a compromise. Please write me at once and give me Milton’s address.

“Yours truly,

“Jas. R. Brown.’’

“Feby. 5th.

“Hon. J. D. Johnson,

“Unionville, Mo.

“My Dear Sir: Yonr letter of the 4th inst. received and, in reply, will say that Mrs. Orpha Wilkinson died Nov. 4, 1897, owning personalty of no value, and real estate the title to which you can determine by examining warranty deed record 7 pages 8 and 9, leaving as her heirs, Nevel Brown and myself. Having purchased brother’s interest before her death I am the onwer -in fee simple to this land.

“ Yours resp.

‘ ‘ James R. Brown. ’ ’

“Princton, Mo.

“Per Perry.

Other oral evidence was directed to the rental value of the land, to the number of acres in cultivation and to the character of the soil and extent of the improvements put on the land by respondent, all of which we deem immaterial to the issues presented to us.

On the foregoing record facts, did the chancellor solve his problem correctly? We think he did, and this, for the following reasons:

I. By Revised Statutes 1899, section 2906, relating to depositions, it is provided that objections to competency or credibility of a witness, or the competency or relevancy of any question put to him, or any answer given by him, may be made at the trial of the cause, though not made when the deposition was taken. In effect, to this section the maxim, expressio v/nius, has been applied, and it has, accordingly, been ruled that the right given by statute to object at the trial to the competency or relevancy of any question, excluded the right to object to the mere form of the question. Objections to form, for obvious reasons, should be made at the time the deposition is taken. [Glasgow v. Ridgeley, 11 Mo. 34.] If so made, they must be renewed at the trial to lay the foundation for a review of rulings, nisi, thereon. [Kirton v. Bull, 168 Mo. 622.] Hence, we need not consider appellants’ objections to certain questions in Hawk’s deposition, inasmuch as such objections seek only the form and not the substance of the question and answer.

II.' It is contended by appellants ’ learned counsel that the Statute of Limitations is a bar to the affirmative relief sought by respondent in the reformation of the deed from John Hawk and wife to Lemuel "Wilkinson. To this contention, respondent replies that the rights of a defendant in possession of real estate, who pleads an equitable defense in an action of ejectment or other action affecting his title, and prays affirmative relief based on such defense, are not within the purview of the Statute of Limitations — briefly stated, that a Statute of Limitations bars actions, not defenses. In our opinion, respondent’s insistence should be allowed under the facts in judgment, and under the authority of Butler v. Carpenter, 163 Mo. 597, and cases cited. In that case it was said: “A ground of defense never becomes stale or barred by the Statute of Limitations, but grows in strength and force as the limitation period against a right of action widens. The Statute of Limitations may be used by a defendant as a shield for his protection or defense, but is never to be turned upon birri as a sword with which to compass his defeat.”

in. The oral evidence, standing alone, may be allowed to be wholly insufficient for the reformation of Hawk’s deed, under the stringent rules adhered to by this court, but the uneontradicted evidence of John Hawk, taken in connection with the deed he executed, is another matter. That deed is, indeed, a speaking instrument; for it shows that the granting clause ran to Lemuel Wilkinson, while in the habendum clause, for the first time, the name of Orpha Wilkinson appears. Not only so, but, after her name once appears, there followed erasures and interlineations clearly-pointing to a preconceived and present intent to, in some way, limit the estate as one, at least, in remainder over to her and her heirs and thus to modify the fee-simple title set over in the premises of the deed to Lemuel Wilkinson. The reformation sought and decreed by the lower court was to so reconstruct the deed as to make all its parts conform to the intent and agreement between the Hawks and the Wilkinsons. The gist of the evidence of John Hawk was that the Wilkinsons wanted a deed written that would have the effect of giving to Lemuel Wilkinson a life estate with a remainder over to his present wife, Orpha, and her heirs to the exclusion of his. Whether the grounds and reasons for that form of a conveyance were sound or unsound is an immaterial matter, in our opinion, on the facts of this case; because they had the legal right to make such arrangement. They went to a justice of the peace and stated their wants to him. Mr. and Mrs. Hawk were willing to put the conveyance in any form desired by the Wilkinsons. It must be apparent to the judicial mind that the justice of the peace, in ignorance of the law, made a mistake of fact in writing the deed, and instead of writing a deed plainly granting the land to Lemuel Wilkinson for his life with remainder over to Orpha, his wife, and her heirs, he tried to effectuate the agreement by writing Orpha Wilkinson’s name in the habendum clause with that of her husband, and thereafter, wherever the expression of “his heirs” occurred, the “his” was striken out and her was written over the same. So intently and persistently did the uninformed mind of the justice run on this idea that in the warranting clause he struck out the pronouns “his” and “himself,” having for their antecedent “John Hawk,” and wrote in the pronouns “her” and “herself.”

It is a legal commonplace that ignorance of the law excuses no man, but this is a hard saying, much murmured against, and the rule is relaxed in equity. Judge Story (1 Story’s Eq. Juris. [13 Ed.], sec. 115), says: “. . . for where an instrument is drawn and executed which professes or is intended to carry into execution an agreement previously entered into, but which by mistake of the draftsman either as to fact or to law does not fulfill that intention, or violates it, equity will correct the mistake so as to produce a conformity to the instrument.”

Speaking to the same point, Black, J., says for this court in Corrigan v. Tiernay, 100 Mo. l. c. 280-1:

‘ ‘ The point pressed upon our attention is, that, according to the answer, Patrick Tiernay had full knowledge of all of the facts, and the mistake was simply a mistake of law in supposing the deed would convey the title to him and his wife jointly. It is a well-estabfished general rule that a court of equity will not grant relief against a mistake of law unmixed with any mistake of fact. [Price v. Estill, 87 Mo. 378; Norton v. Highleyman, 88 Mo. 621.] There are, however, some exceptions to this general rule. Cases arise where there is a mixed mistake of law and of fact in which relief will he granted. Thus in the case of Griffith v. Townley, 69 Mo. 13, an administrator sold land of his intestate, supposing that it was the fee that he was selling, and the purchaser supposed that it was the fee that he was buying. It transpired that nothing passed by the sale but the equity of redemption. ' It was held there was such a mutual mistake of fact and law ns entitled the purchaser to relief. [See, also, Cassidy v. Metcalf, 66 Mo. 519.] But it is not necessary to a disposition of the case in hand to follow out the many distinctions taken in the class of cases just mentioned. If an agreement is what the parties thereto intended it should he, equity does not interfere because the parties did not understand its legal effect. ‘ The principle underlying the rule is,’ says Mr. Pomeroy, ‘that equity will not interfere for the purpose of carrying out an intention which, the parties did not have when they entered into the transaction, bnt which they might or even would have had, if they had been more correctly informed as to the law. ’ [2 Pom. Eq. Jur., sec. 843.] A different case is presented, where the instrument, as it is reduced to writing, fails to express the contract which the parties actually entered -into. In such cases equity will reform the contract, and this, too, though the instrument fails to express the contract which the parties made by reason of a mistake of law. Says the author last named: ‘In short, if a written instrument fails to express the intention which' the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.’ [2 Pom. Eq. Jur., sec. 845.]”

Nor is it material whether the instrument sought to be reformed is an executed or executory agreement, nor whether the proceeding to reform is by way of a bill to correct a mistake, or by way of an answer as a defense asking affirmative relief. The rule announced by Gamble, J., in Leitensdorfer v. Delphy, 15 Mo. l. c. 167, cited by the learned counsel of respondent, is wholesome and to the point, and, therefore, may be'attended to with profit, viz.:

“If words of inheritance were necessary in order to reinvest Fournier with the fee simple of the land which had been conveyed to Denoyer, then such words were omitted by mistake. It was not necessary, in order .to establish a mistake in an instrument, that it shall be shown that particular words were agreed upon by the parties as words to be inserted in the instrument. It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention. The power of a court of equity to reform an instrument, which by reason of a mistake fails to execute the intention of the parties, is unquestionable. It is not material, whether the instrument is an executory or an executed agreement; nor is it material whether the proceeding is directly by bill to correct the mistake or the mistake is set up in the answer by way of defense .... Although it is said that the evidence required to prove a mistake when it is denied must be as satisfactory as if the mistake were admitted, yet this and similar remarks of judges,.however distinguished, form no rule of law to direct courts in dispensing justice. When the mind of a judge is entirely convinced upon any disputed question, whether of fact or law, he is bound to act upon the conviction.”

Applying the foregoing equitable principles to the facts disclosed by the evidence and found to exist by the chancellor, we are of the opinion, and so hold, that ignorance of the law on the part of the justice of the peace created a condition of things in which there was a mixed mistake of law and fact, which, as the justice was the agent of both parties, became a mutual mistake and subject to correction in equity. [Benn v. Pritchett, 163 Mo. 560.]

But it is urged by the learned counsel for' appellants that the will of Lemuel Wilkinson treated this land as belonging to himself and as the subject of a devise, and that respondent Brown was legatee and a. devisee under that will and held under the will, and not otherwise. To sustain this contention, we are referred to the letter written by respondent in 1893. It may be admitted that if Brown held possession as a tenant in common with his co-devisees under that will, or only claimed to derive title under that will, then a • mere change in his.mental attitude would not be a sufficient assertion of a hostile title in himself. He would have to go further and show acts of such unequivocal character and of such inherent nature as to impart information and give notice to Ms co-tenants of actual disseizin. [Coberly v. Coberly, 189 Mo. l. c. 16, et seq.]

But this principle does not assist appellants in tMs case because said letter of respondent- was written at a time when he was not in possession. It was in response to an inquiry and was but giving his own judgment on the condition of part of the record, to-wit, the will. It says that the mother can hold possession during her life, but whether that possession was under the will, or under the deed, or- under her right of quarantine or. dower, or under a statutory right of homestead, the letter does not say, and is not shown by the record. Presently after taMng possession respondent outlined his contentions and made-full disclosures, as shown by his subsequent letters referring to the deed, and bases his claim thereon, though he offers a compromise, so that it cannot be said that respondent took or held possession under the will, as contended by appellants. -

We do not consider the will an obstacle in the road of -granting the relief prayed by respondent; because, if the agreement was as shown by the testimony of John Hawk, and as further persuasively indicated by the deed itself, then equity will consider that done which should have been done — in other words, will treat the case as if the right Mnd of a deed had been written, evidencing the true agreement and intent of the parties at the time. In this view of the matter, it is self-evident that the will of Lemuel Wilkinson, made long subsequent to the conveyance, could not dispose of the fee in the real estate; for his will only became operative at the precise moment of time his estate for life lapsed, to-wit, at his death.

Appellants’ learned counsel fall into another inadvertent error in supposing that, as a matter of pleading, respondent should be held to claim and hold possession of the locus under the will. True it is, respondent pleads the will, but his answer shows that the will is brought to the attention of the court, and that respondent’s position thereon, as shadowed forth in his answer, is circumspectly shaded into colorless neutrality. It must be evident that all parties were somewhat playing for position by their pleadings anent the will. For example, appellants say nothing about the will in their petition. They plant themselves on descent cast as heirs of Lemuel "Wilkinson, and rely on the deed and its construction. They claim sole ownership. They say respondent has no title at all, and they ask the court to give them full possession and decree them the full title, cleared up. Plainly, therefore, appellants determined, of set purpose, that if the will got into the case, it must be brought in by respondent. On the other hand, respondent faced this situation: if the chancellor refused to reform the deed, or if the chancellor construed the deed in accordance with appellants’ contention, then, unless the will was brought before the court, respondent’s right would be cut up, root and branch, even his right under the will. So, too, if respondent claimed under the will alone, then he would by that token become a tenant in common with appellants and the decree would go in accordance with the terms of the will. In this delicate fix, with all' parties eying the will askance, respondent, as we see it, determined to stand on the deed and on his right of reformation, but he brought the will to the attention of the court by way of casting anchor to the windward, so that, if his other contentions were not adopted by the chancellor, full disclosures would be before the court on which a decree might rightfully proceed. In this condition of the pleadings, we knew of no rule from which it follows that respondent (at least in the absence of a motion to elect on the ground of inconsistency) should be held to claim and hold possession under the will alone. Pleadings are no longer interpreted harshly and under the maxim contra proferentem, but are construed liberally, so as to give each litigant the benefit of fair intendments and of all principles of law and equity applicable to tbe several positions taken in tbe pleadings and sustained by tbe proof.

To sum up on the question now in band, we bold, as said, that there was no insurmountable legal obstacle in tbe way of reforming tbe deed. "We bold that tbe evidence was sufficient to warrant tbe chancellor in reforming that deed; and, in so bolding, we give effect to tbe propositions hereinbefore announced as well as to tbe rule that tbe written parts of an instrument, in cases of doubt or repugnancy, control tbe printed parts. [1 Beach on Modern Law of Contracts, sec. 728; Davidson v. Manson, 146 Mo. l. c. 618, and cases cited.] We bold, furthermore, that tbe condition of tbe pleadings and proof does not sustain appellants’ insistence that respondent held under the will or based his rights upon tbe will. These holdings seem to cover and dispose of tbe vital issues in tbe case.

IY. It is contended, however, by respondent that, under tbe doctrine pronounced in Utter v. Sidman, 170 Mo. 284, and the cases leading up to and following it, a proper construction of tbe deed, without a reformation, would give respondent title as tbe heir of Orpha Wilkinson and as purchaser from bis co-beir, Nevill Brown. Tbe doctrine of that case is, in a nutshell, that tbe old cast-iron general rule, that, if there be a repugnancy, tbe first words in a deed and tbe last words in a will shall prevail, no longer obtains in Missouri. Tbe old rule, together with tbe modern rule, as aptly formulated by Marshall, J., in the Utter case (p. 294), is as follows:

“In short [under tbe old rule] — a grantor might convey as be pleased and bis intention and wishes would be observed by the courts, but with this qualification, that be must express bis intention in set and technical language and at tbe proper places and in tbe right order and clause of tbe deed. Failing so to do, tbe courts did not feel called on to bother about his intention, but took what he said first as expressing conclusively his intention and discarded everything else as void for repugnancy. Such a rule of construction made it almost impossible for anyone except a very expert conveyancer to draw an instrument that would stand the test of the rule, and likewise made it very easy for the courts in construing complicated instruments, but it is not so clear that the real intention of the grantor was ascertained or effectuated. 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 polar 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.”

That a remainderman may be named, for the first time, in the habendum clause of a deed, and that the estate created by the granting clause may be thereby cut down from a fee simple to a life estate, is certainly the modern rule and possibly was the rule under the strict common law doctrine. [McCullock v. Holmes, 111 Mo. 445.]

But, if the deed be subject to reformation, as we have held, it becomes unnecessary in this case to decide whether its proper construction as it stands, without reformation, puts the legal title in respondent, or not.

The decree, nisi, was for the right party -and* i»fa®r - cordingly, affirmed.

All concur.