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HUTCHISON v. GOFF

Supreme Court of Missouri. Division No. 2
Dec 14, 1953
262 S.W.2d 851 (Mo. 1953)

Opinion

No. 43521.

December 14, 1953.

APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY.

Paul L. Hale, St. Louis, and Robert W. Hawkins, Caruthersville, for appellant (plaintiff).

Ward Reeves, Caruthersville, for respondent.


This is a suit in four counts, to quiet and determine title, in ejectment, for partition and for an accounting, but upon this appeal the essential and determinative issue is the count to quiet title which the trial court found and determined in favor of the defendant, George Edward Goff, twelve years of age at the time of the trial, and his curator. The correctness of the trial court's judgment upon the count to quiet title depends upon the construction to be placed upon the unusual terminology employed in this deed to George Edward's grandmother and grandfather, Laura and George Goff:

"This Indenture, made on the 31 day of July A.D. One Thousand Nine Hundred and Nineteen by and between Nettie Michie of Steele, Pemiscot Co. Missouri party of the first Part and Laura Goff and at the event of death to George Goff her husband of the County of Pemiscot in the State of Missouri party of the Second Part:

"Witnesseth, That said party of the First Part, in consideration of the sum of Four Thousand Dollars to her paid by said party of the second part, the receipt of which is hereby acknowledged, do by these presents, Grant, Bargain and Sell, Convey and Confirm unto the said party of the Second part, her heirs and assigns, the following described Lots * * *.

"To have and to hold the premises aforesaid * * * unto the said party of the Second Part, and unto her heirs and assigns, Forever, the said Nettie Michie hereby covenanting * * * and that she will Warrant and Defend the title to the said premises unto the said party of the Second Part, and unto her heirs and assigns, Forever, * * *."

George Goff, the husband, died January 5, 1928. His wife, Laura Goff, died December 10, 1950. George and Laura had three children, one of whom died without descendants. Their other children are the plaintiff, Susie Goff Hutchison, and Archie Goff, one of the defendants and George Edward's father. When Mrs. Goff died in 1950 she bequeathed the sum of one dollar to each of her children, Susie Goff Hutchison and Archie Goff. The residue of her estate, real and personal, she devised and bequeathed to her "beloved grandson, George Edward Goff, the son of Archie Goff, to have and to hold for his natural life, with power to dispose of the personal property, but the real estate shall descend to the bodily heirs of the said George Edward Goff, my grandson, upon his death." Mrs. Goff had executed the will on the 19th day of November 1945. While it is stated that the grantee-husband, George Goff, had no other known heirs-at-law than these two children and that, therefore, his daughter, Susie, was entitled to an undivided one half interest in the property, the fact was that he had been married prior to his marriage to Laura, and the unknown heirs of his sons by his first marriage, John and Ernest, are parties defendant in this suit.

The appellant, for obvious reasons, does not contend that this deed created a tenancy by the entirety in the husband and wife. Annotation 161 A.L.R. 457; 41 C.J.S., Husband and Wife, § 31, page 440. Neither does she contend that it created a tenancy in common or any other joint tenancy of an estate of inheritance in them. Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450. The appellant, Susie Goff Hutchison, points to the language in the premises, "Laura Goff and at the event of death to George Goff her husband," and insists that the deed clearly conveyed a life estate to the wife, Laura, and a vested remainder in fee simple to her husband, so that upon his death, prior to his wife's, the vested remainder passed to his heirs and therefore his wife had no interest to devise to her grandson by will. It is said that there is no contingency, in the language employed in the premises, based upon the first grantee's (the wife's) surviving the grantor (the husband) or any other person, — the reference is to an event bound to occur, "at death." In support of her argument the appellant points to the auxiliary rules of construction, that the granting clause of a deed controls over the habendum and warranty clauses where there is repugnancy as in this deed, in that after naming the husband and wife successively they are referred to in the granting clause by the singular designation " party of the second part."

One of the difficulties with the appellant's sole reliance upon the language contained in the premises and the argument that the language created a vested remainder in fee in the husband is that there are no words of limitation, or operative words of inheritance, in that clause. 7 Thompson, Real Property, § 3521, p. 4. The premises may be the only essential part of a deed (Tiedeman, Real Property, § 588, p. 855) necessary to convey an estate of inheritance, Utter v. Sidman, 170 Mo. 284, 70 S.W. 702, but the language "and Laura Goff and at the event of death to George Goff" is not the terminology usually employed in creating an estate of inheritance. While the magic words of inheritance are no longer essential to the creation of an estate of inheritance "in an otherwise effective conveyance" (Section 442.460 RSMo 1949, V.A.M.S., 1 Restatement, Property, § 40) their employment in a conveyance is of some significance. Stotzenberger v. Perkins, 332 Mo. 391, 400, 58 S.W.2d 983, 986. In this deed the words of inheritance are contained in the grant, "unto the said party of the second part, her heirs and assigns." 1 Restatement, Property, p. 76.

The quality of the estate granted in this deed is not fully set forth and defined in the premises as it was in Utter v. Sidman, supra, and if the auxiliary rules and the language of the premises are to have operative effect to convey an estate of inheritance to the husband, it is necessary to look elsewhere in the deed. 7 Thompson, Real Property, § 3522, p. 6; Bean v. Kenmuir, 86 Mo. 666. In that connection, even though the husband and wife are successively named in the premises, the reference in the granting, habendum and warranty clauses is not "to them," meaning two persons, by the singular designation "party of the second part" as urged by the appellant. The interchangeable use of the words "his" and "parties" in a deed referring to the parties of the second part may be of but little, if any, significance when the premises and grant plainly convey an estate of inheritance. Triplett v. Triplett, 332 Mo. 870, 877, 60 S.W.2d 13, 17. But when this deed is considered in its entirety there is no repugnant designation of the parties or, necessarily, any repugnancy in the various clauses of the deed. Petty v. Griffith, Mo., 165 S.W.2d 412, 415. The designation and reference throughout this deed, in the granting, the habendum and the warranty clauses is "unto the said party of the Second Part, and unto her heirs and assigns, Forever." 7 Thompson, Real Property, §§ 3521, p. 4, 3530, p. 20.

Even in conveyances to husband and wife, Annotation, 161 A.L.R. 457, in determining the grantees and the quantity and quality of their estates, the paramount rule of construction is the intention of the parties as expressed and found upon a consideration of all the provisions contained in the deed. Davidson v. Eubanks, supra; Long v. St. Louis Union Trust Co., 332 Mo. 288, 293, 57 S.W.2d 1071. If the parties to this deed, the grantor and, more particularly in this case, the grantees, had intended that the husband should have an estate of inheritance, a vested remainder and the wife the lesser and terminable estate for life, they would certainly have employed other language, even though unskilled in the technicalities of conveyancing. Garrett v. Wiltse, 252 Mo. 699, 710, 161 S.W. 694, 697; Rines v. Mansfield, 96 Mo. 394, loc. cit. 399, 9 S.W. 798, loc. cit. 800. When all the provisions of the deed are considered and given their full force and effect, as may be done, consistently, in this instance, it was plainly the expressed intention of the parties that the wife, Laura, and not the husband, was to and did receive the estate of inheritance. Rines v. Mansfield, supra; Utter v. Sidman, supra; Garrett v. Wiltse, supra; Petty v. Griffith, supra; Edwards v. Beall, 75 Ind. 401. Accordingly the judgment is affirmed.

WESTHUES and BOHLING, CC., concur.


The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

All concur.


Summaries of

HUTCHISON v. GOFF

Supreme Court of Missouri. Division No. 2
Dec 14, 1953
262 S.W.2d 851 (Mo. 1953)
Case details for

HUTCHISON v. GOFF

Case Details

Full title:HUTCHISON v. GOFF ET AL

Court:Supreme Court of Missouri. Division No. 2

Date published: Dec 14, 1953

Citations

262 S.W.2d 851 (Mo. 1953)

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