Donnan v. Intelligencer Printing & Publishing Co.

NORTON, J. — 1. DEEDS, CONSTRUCTION of: granting clause prevails. The principal question in this case grows out of the deed of trust executed by Donan, Reavis & Don-nan to Ethan Allen, as trustee, to secure defendant, Musgrove, in the sum of $3,000,. The language of the granting clause in the said deed is as follows: “ Do by these presents sell, bargain and convey unto said party of the second part, the following described personal property, to-wit: The undivided two-thirds interest of, in and to each and every the following described articles of property.” The said property is specifically mentioned in said deed, and consists of printing presses and attachments pertaining thereto. In the habendum clause it is provided that upon default in the payment of the note secured by the deed, the trustee may proceed to sell said property, and also, “ that until condition broken the property shall remain in the possession of the parties of the first part, but after condition broken the said Ethan Allen may, in person or by agent, take possession of the whole of said property and sell the same on the terms, notice and for the purpose as hereinbefore stated.” We think the court below rightly held that the trustee could only sell and convey an undivided two-thirds interest of the property mentioned in the deed. That is certainly all that,passed to the trustee under the granting clause of the deed, and if it be the true construction as is contended, that the words employed in the habendum clause of the deed enlarged the interest thus conveyed, they must give way so lar as they are inconsistent with those employed in the granting clause, Majors v. Bukley, 51 Mo. [175] 232; 3 Washburn on Real Prop., § 7, p. 367; Chitty on Cont., 122. 2. pleading : defeet of parties. It is also urged as a ground of error that there is a defect of parties. This objection, if the defect of parties appeared on the face of the petition, should pave "been taken advantage of by demurrer, or if it did not so appear, it should have been set up.in the answer, and as the defect of parties was not taken advantage of in either of these ways, it cannot be now considered ; but, under the statute, must be regarded as waived. 2 Wag. Stat., § 10, p. 1015; Kerr v. Bell, 44 Mo. 125. 3. estoppel: deed of trust. It is also assigned for’ error that the court refused affirmative relief to defendant, Musgrove. In this we think the court acted properly, for the reason that Musgrove, in his answer, asserts in effect that the Intelligencer Printing & Publishing Company was the owner by virtue of a transfer made by him to said company of all the property involved in the litigation, and in the bill of sale evidencing the transfer he warrants and agrees to defend the title of the property by him conveyed, lie is, therefore, estopped from disputing the facts set up in his answer and in asking affirmative relief, in opposition to Ins warranty of title. Bruce v. Sims, 34 Mo. 246; Speck v. Riggin, 40 Mo. 405. Judgment affirmed, in which all the judges concur.