Opinion
No. 39859.
October 14, 1946.
1. DEEDS: Estates: Effect of Fee Tail: Contingent Remainder of Bodily Heir. A deed to the grantor's daughter and her bodily heirs was converted by Secs. 3498 and 3500 R.S. 1939 to a life estate in the daughter and a contingent remainder in her only child, a reversion remaining in the grantor. The child of the grantee acquired no vested interest and the grantee inherited no interest from him when he died without issue.
2. QUIETING TITLE: Pleading: Judgments: Decree Beyond Issues Pleaded. Plaintiff sought to have her title determined under certain deeds and defendants' answer raised no additional issues. The decree should have merely denied plaintiff's claim to a fee simple title and limited her to a life estate under the title pleaded, but should not have made any adjudication determining any other interest of either plaintiff or defendants.
Appeal from Lewis Circuit Court. — Hon. Edward M. Jayne, Judge.
REVERSED AND REMANDED ( with directions).
H.S. Rouse and N.W. Simpson for appellant.
(1) A deed conveying land to a mother "and the heirs of her body" gives her a life estate, and her children living at the time of the conveyance a vested remainder in fee, which would open up to let in after-born children. Garth v. Arnold, 115 F. 468; Tindall v. Tindall, 167 Mo. 218, 66 S.W. 1092; Gray v. Ward, 234 Mo. 291, 136 S.W. 405; Moor v. Riddle, 259 Ill. 36, 102 N.E. 257; Warne v. Sorge, 258 Mo. 162, 167 S.W. 967; Sewell v. Thrailkill, 194 S.W.2d 202. (2) The two deeds, exhibits A and B were made to appellant and the heirs of her body (or the equivalent children), with her only child then in esse. When a deed is made to a class as above the estate will vest in the person or persons who were in esse at the time the will or deed takes effect; and such estate will open during the continuance of the particular estate and let in after-born persons who belong to the class. Doener v. Doener, 161 Mo. 399, 61 S.W. 801; Waddell v. Waddell, 99 Mo. 338, 12 S.W. 349. (3) The words "heirs" in a conveyance will be construed to mean "children" and vice versa whenever the context so requires in order to give meaning and effect to all parts of the instrument. Fanning v. Doan, 128 Mo. 323, 30 S.W. 1032; Nations v. Spence, 235 S.W. 1064; Heady v. Hollman, 251 Mo. 632, 158 S.W. 330. (4) The presumption that "heirs of the body" are used in the technical sense, though it obtains in a large majority of cases, it is not always conclusive. 2 Underwood on Wills, p. 870, sec. 561; Gillian v. Gillian, 278 Mo. 99, 212 S.W. 348. (5) In the construction of a deed, the intention of the grantors as gathered from the four corners of the deed, is the pole star of construction; and the intention may be expressed anywhere in the deed and in any words. Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035; Gains v. Melton, 343 Mo. 413, 121 S.W.2d 821; Utter v. Sidman, 170 Mo. 284, 70 S.W. 702; Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187. (6) Every conveyance of real estate shall pass all the estate of the grantor therein, unless an intent to pass a less estate shall expressly appear, or be necessarily implied by the terms of the grant. Sec. 3496, R.S. 1939; Inlow v. Herran, 306 Mo. 42, 267 S.W. 893; McMahil v. Schowengerdt, 183 S.W. 605. (7) The two warranty deeds, exhibits A. and B., each shows a $4000 consideration. The recital of a consideration is prima facie proof of the payment of a valuable one, and if the consideration is expressed in dollars, that amount will be presumed to be the agreed value of the property. In the absence of evidence to the contrary the expressed consideration will be held to be the true and only one. 18 C.J., pp. 265-66, secs. 221-22; Anderson v. Cole, 234 Mo. 1, 136 S.W. 395. (8) Remainder-Vested. The law favors vested estates, and where it is doubtful whether the remainder is vested or contingent, the court will construe it as a vested one. Chew v. Keller, 100 Mo. 362, 13 S.W. 395; Sanders v. Jones, 347 Mo. 255, 147 S.W.2d 424; Tindall v. Tindall, 167 Mo. 218, 66 S.W. 1092; Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929. (9) The reversion remaining in a grantor after deeding away a portion of said estate in descendible; and upon the death of the grantor, intestate, said reversion descends to his heirs at law according to the laws of descents and distributions of the State of Missouri. Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641; Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Langford v. Langford, 348 Mo. 1170, 159 S.W.2d 264; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Collins v. Whitman, 283 Mo. 383, 222 S.W. 840.
Waldo Edwards and D.L. Dempsey for respondents.
(1) Under the deeds attached to and forming a part of plaintiff's petition, and marked Exhibits A and B, the plaintiff became and is seized of an estate for life in the lands thereby conveyed, with a contingent remainder in those who are her bodily heirs, or heirs of her body, at her death. Willhite v. Rathburn, 61 S.W.2d 708; Norman v. Horton, 126 S.W.2d 187; Davis v. Austin, 156 S.W.2d 903; Bullock v. Peoples Bank, 173 S.W.2d 753; Byrd v. Allen, 171 S.W.2d 691; 26 C.J.S., sec. 111, p. 401; Sec. 3498, R.S. 1939; Sec. 3500, R.S. 1939. (2) This is an action to quiet title under Sec. 1684, Revised Statutes of Missouri, 1939. The issues made by the pleadings make it an action at law. Neither the plaintiff's petition nor the defendants' answer invoke the principles of equity. The relief, therefore, that may be afforded in this action is to be measured by the pleadings, and the court is without power to grant relief outside of the issues made by the pleadings. Johnson Timber Realty Co. v. Belt, 46 S.W.2d 153, 329 Mo. 515; Raines v. Moulder, 90 S.W.2d 81; Baker v. Lamar, 140 S.W.2d 31. (3) The rules of procedure in suits to quiet title are the same as in other civil actions. This being true, the relief afforded is measured by the pleadings. Stewart v. Omaha Loan Trust Co., 222 S.W. 808; Sec. 1685, R.S. 1939. (4) Plaintiff's petition and defendants' answer having determined that this is an action at law, the prayer for general relief at the close of plaintiff's petition, is insufficient to convert this action to determine title into an action in equity. Jacobs v. Waldron, 298 474 S.W. 773, 317 Mo. 1133. (5) Section 1684, Revised Statutes of Missouri, 1939, under which the action here is brought, empowers the court ". . . to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. And upon the trial of such cause if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interest, liens and demands, whatsoever of the parties, or any one of them, concerning or affecting said real property and may award full and complete relief, whether legal or equitable, to the several parties . . .".
This action involves the title to 160 acres of land (S.E. ¼, Sec. 30, Twp. 61, R. 9 West) in Lewis county, Missouri. The common source of title is James W. Washburn. He and his wife, Mary K. Washburn, had four children, one being plaintiff here, i.e., Nettie K. The other three children are dead and their descendants are defendants, viz., James Washburn, the only child of George Washburn, deceased; Jessie H. Thompson and Earl Haldeman, Sr., children, and Janice H. Tieman, granddaughter of Annie Haldeman (nee Washburn), deceased; and Horace W. McKim, son of Tilla McKim (nee Washburn), deceased. The issue for determination is the estate created by two deeds containing identical provisions as to said issue.
Nettie K. Mattingly was born December 25, 1874, and Phillip A. Mattingly was born January 18, 1871. They have lived together since their marriage February 8, 1894. A son John Mattingly was born in 1904. While John Mattingly was a minor and during the lifetime of their four children, James W. Washburn and his wife delivered the deeds involved; one conveying the south half (dated November 24, 1906, and recorded "in book 111 at page 38") and the other the north half (dated July 16, 1914, and recorded "in book 122 at page 490") of said land. Each deed named as grantees "Nettie K. Mattingly and her bodily heirs . . . parties of the second part." The consideration was stated to be "love and affection and the sum of four thousand dollars to them paid by said parties of the second part." The grant was to "said Nettie K. Mattingly and her bodily heirs . . .
"The land herein conveyed is to be expressly understood to be [for] the sole use and benefit of the said Nettie K. Mattingly and the heirs of her body.
"To be and to remain absolutely free from any claim of her husband Phillip A. Mattingly.
"It is further expressly understood that in said land being granted to the sole and [625] separate use and benefit of the said Nettie K. Mattingly and her bodily heirs that the same shall during the lifetime of the grantor James W. Washburn, and during the lifetime of the said Nettie K. Mattingly, and until all her bodily heirs shall arrive at their legal majority, be and remain nonalienable either by deed, bond or mortgage, as aforesaid."
Both the habendum and the warranty were "unto the said Nettie K. Mattingly and her bodily heirs."
Plaintiff offered in evidence two warranty deeds: one dated June 22, 1916, from said James W. Washburn and wife to his other three children — George S. Washburn, Annie W. Haldeman and Rilla W. McKim; the other from said grantees to a third party. These deeds were excluded from consideration by the trial court in arriving at its judgment and plaintiff assigns no point here with respect to said ruling.
James W. Washburn died January 8, 1920, and Mary K. Washburn, his widow, died November 24, 1924. John Mattingly died at the approximate age of 40, June 19, 1944, "intestate, single and unmarried." In 1945 Phillip A. Mattingly conveyed all his right, title and interest in the land to Nettie K., his wife. Nettie K. Mattingly and her husband were in their seventies at the time of trial and she had no child or descendant living.
The court adjudged "that the claim of the plaintiff in and to a fee simple title to said lands is denied; that plaintiff owns an estate in said lands only for and during her natural life . . ."
Plaintiff cites authorities to a number of issues not determinative of the case. We think they need not be developed. More to the point is plaintiff's assertion that a deed to a mother "and the heirs of her body" vests, as of the effective date of the instrument, the fee "in the children," if any then living, and opens up to let in after-born children, all subject to the mother's life estate; that is, so far as material, that the remainder in fee vested in John Mattingly and upon his death in 1944 passed to his parents under our statutes of descent and distribution and that plaintiff is now vested with the fee through inheritance from her son and the deed from her husband. Plaintiff's cases may be distinguished. Missouri has had several statutes affecting estates tail of the common law. 1 Mo. Terr. Laws, p. 436, Sec. 2; R.S. 1825, p. 216, Sec. 4; R.S. 1845, p. 219, Sec. 5; Gen. Stat. 1865, p. 442, Sec. 4. The cases are influenced by the effective statutory provisions. The instant deeds are governed by now Sec. 3498, R.S. 1939 (the statute of 1865), and consult Sec. 3500, R.S. 1939. The grant in Tindall v. Tindall, 167 Mo. 218, 66 S.W. 1092, was executed in 1844 and was to grantor's daughter for life and "the issue of her body." It differs from the instant grant. Her child would qualify as an "issue of her body" but if the child predecease the mother it could never qualify as an "heir of her body." Consult the comment on observations in the Tindall opinion in Heady v. Crouse (Banc), 203 Mo. 100, 119(II), 100 S.W. 1052, 1057, 120 Am. St. Rep. 643, and Gillilan v. Gillilan, 278 Mo. 99, 116, 212 S.W. 348, 351[9]. Warne v. Sorge, 258 Mo. 162, 167 S.W. 967, ruled that the children of deceased children of the grantee in tail took under the grant there involved; an issue not within the instant review. Garth v. Arnold, 115 F. 468, involved a deed executed in 1855, before the instant statute was enacted. Gray v. Ward, 234 Mo. 291, 136 S.W. 405, contains some loose language. The grant was to "Sallie Gray and her heirs by James P. Gray." At the time of the suit Sallie and six children of Sallie by James P. were living, one child had died in infancy and James P. was dead. Reference to the files discloses that the deed was dated December 2, 1870, and that James P. died November 15, 1887. The court applied Sec. 2872, R.S. 1909, now Sec. 3498, R.S. 1939, and speaks of the plaintiff, one of said six children, having an undivided one-sixth interest in remainder subject to the life estate of Sallie as though the remainder were vested. If the remainder had vested in the "children" as distinguished from a contingent remainder in the "heirs" of Sallie by James P., then plaintiff's interest would have been influenced by the portion passing to the mother (and possibly to the father) surviving [626] the child who died in infancy (Sec. 306, R.S. 1939, formerly Gen. Stat. 1865, p. 518, Sec. 1). The court did not treat the remainder as vested.
A reading of plaintiff's cases, cited infra, in support of the contention that the word "heirs" may be construed to mean "children" when the context requires such construction discloses they involved materially different factual situations. Fanning v. Doan, 128 Mo. 323, 30 S.W. 1032; Nations v. Spence (Mo.), 235 S.W. 1064; Heady v. Hollman, 251 Mo. 632, 158 S.W. 19. They are not controlling.
Numerous cases hold that under the laws of this State (R.S. 1939, Secs. 3498, 3500) conveyances to one and his or her bodily heirs (creating an estate tail under the common law as in the instant deeds) carves out of a grantor's fee simple estate certain lesser estates, viz.: first a life estate in the first taker; next a contingent remainder in those qualifying as "bodily heirs" on the death of the first taker, while the fee, that is, the reversion, remains in the grantor, his assigns, heirs or devisees pending the determination under the original grant of its vesting or falling in for want of takers as "bodily heirs" of said grantee for life. We need not repeat here what has been said in the adjudicated cases. See, among others, Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641; Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187, 125 A.L.R. 531; Byrd v. Allen, 351 Mo. 99, 171 S.W.2d 691; Bullock v. Peoples Bank of Holcomb, 351 Mo. 587, 173 S.W.2d 753; Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Collins v. Whitman, 283 Mo. 383, 222 S.W. 840; Lankford v. Lankford, 348 Mo. 1170, 159 S.W.2d 264; Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382. So, under the authorities Nettie K. Mattingly took a life estate under the deeds in question and her son John a contingent remainder, the contingency of his estate becoming vested being his qualifying upon the death of Nettie K. as her "bodily heir," a contingency which fell in which fell in when he predeceased his said mother; and under the authorities neither she nor her husband inherited any right, title or interest in the land from said son.
Plaintiff makes the point in her brief, if she does not hold the fee to the whole, that the reversion, the fee, descended to grantor's heirs at law upon grantor's death intestate, and, consequently, plaintiff inherited an undivided one-fourth interest in fee subject to being divested in the event she die leaving "bodily heirs." Defendants contend that the court "can not go outside the issues made and find that plaintiff, as well as defendants, had a contingent interest in the reversion in the event of the death of Nettie K. Mattingly without heirs of her body." Defendants' contention assumes they have an interest.
Our quiet title statute (R.S. 1939, Sec. 1684) provides that: "Any person claiming any title, estate or interest in real property . . . may institute an action against any . . . persons . . . to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interest, liens and demands, whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them . . ." Italics ours.
Plaintiff's petition specifically pleaded the two deeds from her father to herself and by reason of said deeds, the death of her son John and the subsequent deed from her husband, she asserted the full and complete fee simple title to said lands in herself and on "the premises heretofore mentioned and considered" prayed an adjudication "that she alone owns and possesses" the fee; "and that neither the defendants, nor any of them, have any" title, "vested or contingent, present or remote, of any character" in said real estate.
Defendants' answer, although pleading specific facts, tendered no additional facts or issues. They pleaded no title in themselves. They denied plaintiff's asserted [627] ownership of the fee. They admitted plaintiff held an estate for life under said deeds and, conforming thereto, prayed the court to adjudge plaintiff the owner of a life estate only and not the owner of the fee.
Upon the trial, the only facts adduced were those hereinbefore stated. They established, as stated, that plaintiff held a life estate under said deeds; that the remainder would vest in her "bodily heirs" in the event she died leaving "bodily heirs," and that the reversion, the fee, remainder in the grantor. Whether James W. Washburn, the grantor, ever deeded this reversion to another, or disposed of it by will or died intestate is not established. Consequently, facts essential to a determination of the fee simple title vesting in James W. Washburn's children, either in defendants or in plaintiff or in both, do not appear of record.
In the circumstances, the judgment of the trial court is essentially correct, but should be modified so as to limit its effect to the issues actually presented for determination and without prejudice to any party to otherwise establish an interest in and to the lands; that is, the judgment should be modified to embrace a finding that plaintiff is seized under said deeds of an estate for life in the lands; and to adjudge that plaintiff owns an estate in said lands under said deeds for and during her natural life, and deny plaintiff's claim to the fee under said deeds; the whole without prejudice to any of the parties to assert any right, title or interest in and to said lands based upon any other set of facts. Accordingly, the judgment stands reversed and the cause is remanded with directions to modify the judgment to conform herewith. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.