Owen v. Trail

*298 WHITE, J. Action in ejectment for tract of land in Lincoln County. The petition, in the usual form, was filed February 19, 1919. The answer pleads the ten-year, the twenty-fonr-year, and the thirty-year Statute of Limitations, and alleges further that Martha E. Trail is the owner of the land in fee simple. Plaintiffs claim as the heirs and descendants of William Trail, deceased, who is the common source of title. The defendants claim as grantees of Sarah A. Trail, daughter of William Trail. The controversy turns upon the construction of the following conveyance, executed by William Trail and Sarah Trail, his wife, conveying the property to their daughter, Sarah .Trail, sometimes named in the record Sarah A. Trail, as follows: “This Indenture entered into this 20th day of August in the year of our Lord one thousand eight hundred and Sixty four between William Trail and Sarah Trail, his wife, of the first part and Sarah Trail of the second part, boath parties of the County of Lincoln State of Missouri Witnesseth that for and in consideration for the grate love and regard we have for the said Sarah Trail being our beloved daughter and for the father consideration for the tender regard She has Shown us in our declining years have this day by this deed of Gift Granted deeded a/nd convaied into her the said Sarah Trail the partie of the Second part and the heires of her body for ever — but it is distinctly understood by the parties that the Said Sarah Trail the partie of the Second *299 part is not to come in possession of the real estate described nor to exersise aney controle over the Same until after the death of William Trail & Sarah Trail the parties of the first part and being the Father and Mother of the Second partie. Said Tract of land described as follows (Towit) Seventy Six acres being the North half of the South East quarter of Section Thirty one in Township Fifty of Range one west of the fifth principal Meridian to have and to hold the Said Granted premicies with all the priviligs and appertainances thereto belonging to the aforesaid Sarah Trail and the heirs of heir body for ever and we Father deed Give and coney unto the partie of the Second part two beadstides one of them made by Thompson and the other bought from John Hall Two fether'beds two underbeads and four pillows two bolsters and all the quilts coverleds blancurts and Sheet that She clames as belonging to Said beads — one pres one falling leaf Tabel on set of Windsor chimes one big spinning wheel one Small flax wheel — one Reel — one Set Stone chaney plate one Set Stone chaney cupés and Susers — one Set of Read plates one Set of Tea Spoons —one Set of Tabel Spoons — one Set of Knives and Forks — -one Sugar Bowl- — one large Kittel One coocking stove- — one worming Stove — -one clock — and all the milk Veseles and chirn — and all the wool and spun yarne. Three cowes and one calf — Three Heifers one sucking colt called Kit — Ten head of Sheep one Sow and four Shoates — all of the above described personal property to be heirs the said Sarah Trail at our death — and no person calaming ownership under us Shall ever have any right to aney of the real Estate or personal property convied by us mentioned in this deed of Gift made by us as witness our hands and Seales. his “William x Trail (Seal) mark heir “Sarah x Trail (Seal) marclc “Government Stamp $ :50” *300 The deed was duly acknowledged August 20, 1864, and filed for record April 17, 1866. William Trail died April 11, 1866, and Sarah Trail, his widow, died January 7,1893; Sarah A. Trail, the daughter, died May 10, 1918. The plaintiffs claim title as the heirs of William Trail, deceased, on the theory that the deed above set out conveyed to Sarah A. Trail, the daughter, a fee-tail estate which under Section 2267, Revised Statutes 1919, was converted into a life estate in her with the remainder to the heirs of her body; that she having died without issue the title reverted to the heirs of William Trail, the grantor. The defendants claim: (a) That the deed passed Sarah A. Trail a fee simple title, or (b) That the deed was testamentary in character, inoperative to pass any title, in which case it passed only color of title, and the several statutes of limitations would operate in favor of Sarah A. Trail and her grantees because of adverse possession, or that the deed is a covenant to stand seized to the use of Sarah A. Trail, and under Section .2262, Revised Statutes 1919, the title is vested eo instante in the usee. The trial judge found the issues for plaintiffs, and defendants appealed. I. What estate did Sarah A. Trail, the daughter, acquire by the deed? The appellant stresses the rule that the intention of the parties must be gathered from the entire instrument, and the deed interpreted so as to carry out that intention, if possible. Numerous authorities are cited showing that to be the. settled doctrine in this State. There are certain qualifications of that rule: (a) The intention must be gathered from the language of the instrument, aided where necessary by the *301 surrounding circumstances. The instrument must he interpreted by what the grantor actually said, not by what else he may have meant to say. [18 C. J. 254, 258; Ashbaugh v. Ashbaugh, 273 Mo. l. c. 360; 8 R. C. L. 1040; Whitmore v. Brown, 100 Me. 410; Bartholomew v. Muzzy, 29 Am. St. 206.] (b) The supposed intention cannot prevail against settled rules of law. [18 C. J. 259; Aetna Life Ins. Co. v. Hoppin, 249 Ill. l. c. 413; Dooley v. Greening, 201 Mo. l. c. 354.] Where certain words and phrases have acquired a definite technical meaning in conveyances, that meaning will prevail unless a contrary intention appears in the instrument. The conveyance under consideration affects both real estate and personal property. Take all the operative and limiting words in the conveyance affecting the real estate and consider them, as follows: “. . . have this day by this deed of Gift Granted deeded avd convaid into her the said Sarah Trail the partie of the Second part and the heires of her body for ever — but it is distinctly understood by the parties that the Said Sarah Trail the partie of the Second part is not to come in possession of the real estate'described nor to exersize aney controle over the Same until after the death of William Trail and Sarah Trail the parties of the first part and being the Father and Mother of the Second partie. . . . “and no person calaming ownership under us Shall ever have any right to aney of the real Estate or personal property convied by us mentioned in this deed of Gift made by us as witness our hands and Seales There can be ño question that the granting clause vests in Sarah Trail a fee-tail, which under the statute would become a life estate. The expression “the heirs of her body” has been construed so often flT1^ so thoroughly understood as words of purchase, not of limitation, that no intention can be allowed to nullify their operation or change their ef *302 feet unless such, intention clearly appears in the instrument. The qualifying part of the granting clause to the effect that the grantee was not to come into possession or control of the property during the life of grantor would not have the effect to modify that investiture of the life estate. That clause is claimed by appellant to make the instrument testamentary, conveying no title whatever. It is not contended that it operates to enlarge the estate granted. This will be considered below in Paragraph II. Neither is there anything in the last part of the instrument which would show an intention to enlarge the estate to one of fee simple where the grantors say: “no person calaming ownership under us Shall ever have any right to aney of the real Estate or personal property convied by us mentioned in this deed of Gift made by us as witness our hands and Seales.” The ignorance of the scrivener is apparent. He evidently prided himself on his knowledge of, legal forms and by these words sought to express in his own way, or according to his best recollection, a covenant for further assurance, or quiet enjoyment. He succeeded only in expressing a warranty against anyone claiming under the grantor, a limited covenant for quiet enjoyment. There is nothing in the express terms of the instrument which, according to the rule so long and so thoroughly established in this State, by any construction could modify the effect of the granting clause. It is argued that the intention appears in the surroundings, in the peculiar character of the instrument and the ignorance of the scrivener. As to the surroundings, the daughter was living with her parents and continued to live on the place with them until both were dead, and until she conveyed it in 1909. There is nothing in the acts of the parties in their relation to each other, nor in the manner in which they treated the matter that could affect the force of the instrument. It is even asserted that because Sarah A. Trail had no children to take in remainder, the intention to vest a fee simple title in her appears. That is to say, *303 the deed is to he construed, not by its terms and immediate surroundings, but by subsequent unforeseen events. To state that argument is to destroy it. The deed was made in 1864. The grantee was probably a young girl, for she lived fifty-four years after that. Her parents naturally expected her to have children, otherwise the words “heirs of her body” would be meaningless. Against all the precedents it is claimed that because the scrivener was ignorant of the meaning of legal terms which he used, the intention to convey the fee simple title appears in the instrument. Of course ahowance must be made for such ignorance. It was said in the dissenting opinion in Welch v. Finley, 281 Mo. l. c. 696: “Such a writer is apt'to use such technical terms as he may recall at the moment, in order to give an air of legal knowledge to the document, but he usually has little realization of the significance of the words he employs. To him they are mere matters of form. ’ ’ Giving that argument its full effect it may be said that the scrivener, feeling the importance of his legal knowledge which he wished to display in the instrument, used the words “heirs of her body,” intending them to have the same effect as the word “heirs,” believing that to be the correct way to convey a fee simple title; that he had heard such words used, or had seen them in print and misunderstood their meaning. It is unnecessary to argue that that sort of mistake could not be inferred and be given effect against the well-established construction of the language. The leading case in this State, cited by appellant, discusses the rule that the intention must be gathered from all the'instrument. [Utter v. Sidman, 170 Mo. 284.] That case is cited in nearly all subsequent cases which consider the subject. It will be well to note just.what that case holds: The deed under consideration there (l. c. (288) conveyed the land in dispute to “ Frances A. Clark ’ ’ (without any qualifying words); the habendum is “to have and to hold,” etc., “unto the said Frances A. Clark *304 and her bodily heirs and assigns;” the warranty was to “Prances A. Clark, her heirs and assigns.” Now in that case the granting clause expressed fee simple conveyance. The warranty was to a fee simple in the grantee. The habendum was to her and her “bodily heirs. This court held that, notwithstanding the parts of the instrument which would have the effect to convey fee simple, the limitation in the habendum reduced the effect to a life estate in the grantee. It might as well be said that the justice of the peace who wrote that deed attempted to air his knowledge of the law by using the words “bodily heirs,” when he meant “heirs.” Certainly the supposed intention in that case to create a fee simple was more apparent than in the present case. Here the only reason that can be advanced for holding that a fee simple title was conveyed is that the parties to the transaction were ignorant and did not understand the use of the terms which they employed. That method of construction would do violence to the rules of law stated above. Several cases discuss the matter of an ignorant scrivener. [Willis v. Robinson, 291 Mo. 664; Welch v. Finley, 281 Mo. 696.] In none of these has the supposed ignorance of the scrivener been allowed to give effect to a supposed intention of the parties where it would do violence to language of settled meaning. II. The second proposition is that the conveyance is testamentary in character on account'of the qualification in the granting clause: “ ... but it is distinctly understood by the parties that the Said Sarah Trail the partie of the Second part is not to come in possession of the real estate described nor to exercise aney controle over the- Same until after the death of William Trail & Sarah Trail the parties of the first part and being the Father and Mother of the Second partie. ’ ’ There is nc doubt that an estate to commence in the future may be granted by deed, under Section 2271, Revised Statutes 1919, and that is not disputed. [Dawson *305 v. Taylor, 214 S. W. 852; Hohenstreet v. Segelhorst, 285 Mo. 507.] In the latter case this court reviews the authorities (l. c. 519, 520, 521) which announce the rule. If the terms of the deed show that the intention of the grantor is to pass a present irrevocable interest in the property, and that a limiting condition operated only upon the present enjoyment of the premises, then it would he a valid deed. But if the instrument is to have no effect until after the death of the grantor it is testamentary and inoperative unless witnessed as a will is required to be witnessed. [See also Christ v. Kuehne, 172 Mo. 118; Wimpey v. Ledford, 177 S. W. 302; Priest v. McFarland, 262 Mo. 229.] While the parties to this deed, or the scrivener, were ignorant of spelling, the instrument shows they understood what they were doing in respect to the vesting of the title. If it had been the intention to sáy the grantee should bave no interest in the premises, or that the deed should not take effect, or that it should not he delivered, until after the death of the grantors, some words easily could have been used to show that intention. The words used were “possession” and “control,” which have well'understood meanings. The appellant argues that use of the word “control” means that the grantee had no authority to convey or to encumber the property or to do anything which would affect the title granted here. “Control” has no such meaning. It is not synonymous with “deal in” or words of similar significance. Control means to “exercise a restraining or directing influence over; to regulate, ’ ’ as applied to the physical property. It does not apply to the title or estate granted. The grantee was not to exercise any control, such as the management of the crops or of the improvements. That, evidently, is what was meant. The word “possession,” as used under the circumstances, was insufficient to express the intention, because the grantee did in fact live on the land with her parents. In order that the word “possession” might not he misunderstood they used the word control; the life estate remaining in the grantors left them- the power to control. The instrument *306 here shows plainly the intention to postpone the enjoyment only, the estate in futuro is presently vested. Light is thrown on the intention by a distinction which the grantees made between the personal property and the real estate. After describing the personal property, the instrument reads: Pall of the above described personal property to be heirs the said Sarah Trail at our death.” Then follows the special covenant mentioned. That might plausibly be said to postpone the investiture of title to the personal property until, after the death of the grantors. It is significant that no such language is used in regard to the real estate. Since Sarah A. Trail had a life estate and conveyed it to defendants no cause of action accrued . . to plaintiffs until her death in 1918, and they could not be barred by any statute of limitations. III. Finally it is argued that the deed is a covenant to stand seized to the use of Sarah A. Trail and that under operation of Section 2262, Revised Statutes 1919, the legal title would vest eo instante in the grantee. This fact would be entirely unimportant if it were correct, because grantors would not stand seized to the use of the grantee in any different estate than that expressed in the instrument, and if the instrument shows life estate in Sarah Trail, with remainder to the heirs of her body, the effect would be exactly the same as if we give the deed the construction contended for by the respondent. Sarah A. Trail having no heirs of her body to take by the operation of the deed, the estate reverts by the operation of law to the heirs of the grantor. This proposition is not contested. The judgment is affirmed. All concur, except Wood-son, G. J., who dissents.