Long v. Timms

Brace, J. This is an action in ejectment in which the plaintiff seeks to recover an undivided fourth part — 515 — of certain real estate described in the petition. There is no dispute about the facts, the case was tried by the court without a jury, and the plaintiff obtained judgment for the undivided eighth part of the premises; and the defendant appeals. Valentine S. Peyton is the common source of title. In the year 1836, he was seized in fee simple of a tract of land in Clay county, containing two hundred and seventy ácres, on which he. with his wife, was then residing. He then had living one married daughter, Mrs. Frances Elizabeth Long, wife of Garrard Long, and two grandchildren, Louisa Frances Collier and Valentine Smallwood Peyton Collier, minors of tender years, children of his deceased daughter, Nancy. Mrs. Long and her children and these grandchildren were his only lineal descendants. On the fourth of October, 1836, the said Peyton by deed duly executed, in which his wife joined, conveyed to his said daughter, Frances Elizabeth Long, the fee simple to the south half of his said land, reserving, however, the use of the house, improvements and improved land, except five acres, to his wife during her natural life. On the fifth of December, 1836, the said Peyton and his wife duly executed the following deed: “This indenture made and entered into this fifth day of December, in the year of our Lord eighteen hundred and thirty-six, between Valentine S. Peyton, of the county of Clay, and state of Missouri, of the one part, and Woodson J. Moss, of the county and state aforesaid, of the other part, witnesseth: ■ That, whereas the said Valentine S. Peyton having realized from the sale of a tract of land, the property of his wife, Elizabeth Peyton, the sum of $3,762.79 is desirous and willing to secure to her some equivalent for the same. Now, therefore, in consideration of the premises aforesaid, and with the view of providing for the support and maintenance of his said wife, and in consideration of the — 516 — natural love and affection which, he, the said Valentine S. Peyton, has for his grandchildren, Valentine Small-wood Peyton Collier and Louisa Frances Collier, being the children of his daughter, Nancy McClanahan Collier, formerly Nancy McClanahan Peyton, of Nicholas county, Kentucky, the said Valentine S. Peyton has granted, bargained, sold and set over, and by these presents doth grant, bargain, sell and set over unto the said Woodson J. Moss all that certain piece or parcel of land situate, lying and being in the county of Clay, and state of Missouri, aforesaid, to-wit, the north half of the tract, whereon we now live, to begin at the northwest corner of said tract, thence south on the west line thereof so far as by running a dividing line due east to the east line, thence with that line north to the northeast corner of said tract, and thence west to the beginning to contain one hundred and thirty-five acres; and also three certain slaves for life, to-wit, Henry, Jinny and Sarah, to have and to hold, receive and take the same to him, the said Woodson J. Moss, his heirs and assigns to the only proper use and behoof of him, the said Woodson J. Moss, his heirs and assigns forever. In trust, however, and to the intent and purpose that he, the said Woodson J.'Moss, shall, and will, employ and appropriate, or cause to be employed and appropriated for the use and benefit of the said Elizabeth Peyton during her natural life, all the rents and profits of the said lands and negroes, allowing the said Elizabeth Peyton the personal occupation of the said land and the possession and use of the said negroes whensoever and as long as she may choose. And the said Woodson J. Moss is hereby authorized to sell at such time, and on such terms as he may think best, all or any of said negroes, and to put the money arising from such sale or' sales to interest, or pay over the same with the interest which may have accrued thereon, or the interest only, at his discretion, to the'said Elizabeth Peyton without security for its return in any event; and this — 517 — conveyance is upon this further condition, to-wit: That at the death of the said Elizabeth Peyton said conveyance to the said Woodson J. Moss, his heirs and assigns shall be null and void, and the trust aforesaid shall cease, and the said land and one-half of the said negroes and their increase, remaining unsold, and one-half of the money unexpended, arising from the sale of such negroes as may have been sold, to revert and be the absolute property of the said Valentine Smallwood Peyton Collier and Louisa Frances Collier, said infant children of the said Nancy McClanahan Collier, and the other half of said negroes and their increase so remaining unsold, and the one-half of the money unexpended arising as aforesaid to revert to and become the absolute property of my daughter, Frances Elizabeth Long, and her heirs and assigns, and in case of the death of the said Valentine Smallwood Peyton Collier and Louisa Frances Collier, infant children of the said Nancy McClanahan Collier, without issue, then the said land above described and negroes and their proceeds, if sold, to revert to and be the absolute property of my said daughter, Frances Elizabeth Long, her heirs and assigns forever, and in case of the death of the said Frances Elizabeth Long, without issue, then the whole of the above-described negroes and their proceeds, if sold, to revert and be the absolute property of the said Valentine Smallwood Peyton Collier and Louisa Frances Collier forever.” The land in controversy, forty-five acres, is included within the boundaries described in this deed. Louisa Frances Collier died a minor without issue in 1838; Mrs. Elizabeth Peyton died in 1862. Prior to August 28, 1852, Valentine S. P. Collier, who is. still living, had married, and then had, and now has, living issue of his marriage. On that day by deed duly executed, he conveyed the premises in controversy to the said Garrard Long who entered into possession thereof, and the interest and possession thereby by him acquired was after-wards by mesne conveyances acquired by the defendant, — 518 — Joseph H. Timms, who was in possession when this suit was brought. Garrard Long died in 1877. Prances Elizabeth Long died March 14, 1886, intestate, leaving surviving her four daughters, one of whom, Lizzie M. Long, is the plaintiff in this case. I. It is contended for plaintiff that as Valentine S. P. Collier and Louisa Prances Collier were small children, without heirs of their bodies, at the time the deed of December 5, 1886, was executed; whatever estate was intended for them by this deed was in abeyance until their grandmother, Elizabeth Peyton, died, and Louisa having died without an inheritable estate in the lands, in infancy, without issue, long before the death of her grandmother; and no cross-remainder being created in express terms in the deed between her and her brother ; upon the death of the said Elizabeth, the fee to the one undivided half of the land immediately vested in Francis Elizabeth Long, and that plaintiff being one of her four daughters, her only heirs-at-law, is therefore entitled to an undivided eighth of the premises — and the trial court so held. It is obvious from the terms of the deed, that it was the intention of the grantor that the fee to the land should not vest in remainder until the death of his wife. To accomplish this purpose, it was conveyed in trust to another until that event should happen. For the purposes of this case, it is unnecessary to define the nature and extent of the tithe deraigned by the defendant from Valentine S. P. Collier. If the plaintiff can recover at all, it must be upon the strength of her own title. The estate limited to her mother in the deed is a contingent remainder in fee simple. The important question to be determined is, has the contingency arisen in which she was to be let in to that estate % That contingency is defined in the deed in unmistakable terms to be “in case of the death of the said Valentine Smallwood Peyton Collier and Louisa Prances Collier, infant children of the said Nancy McClanahan — 519 — Collier without issue.’’ The contingency comprehended in these terms has not come to pass. Valentine Small-wood Peyton Collier is still living and has living issue, and as long as this condition exists the plaintiff has no present title which she can assert to draw to it a right of present possession. The time has long since passed, when the tenure of lands by deed, if it ever existed in this country, was dependent upon the technical meaning of words, or construction of sentences in use among old English conveyancers. The controlling canon for the construction of deeds, as of wills and other instruments of writing to-day, is to ascertain the meaning of the grantor from the words he uses, in the light of the circumstances which surrounded, attended and waited upon his use of them. The dominant idea ever in the mind of a grantor in a deed is his property and who is to have it. Three times in this deed the grantor named his grandchildren, the grantees to whom the land is to go. absolutely after the termination of the life-estate of his wife, and each time he couples them together not only by the copulative conjunction “and,” but never fails to show in each instance their unity in his mind, by naming them always as the children of his deceased daughter, so that there might be no mistake, that in his mind they stood, not separate individuals in the grant, but together standing for, and in the place of, his deceased daughter, to whose blood in lineal descent the land was to go, and only in case of failure of issue of that blood was the land to go to his other daughter and her heirs. The land in remainder, after the death of his wife, was granted to them and their issue as a class of one root, and, until that class is exhausted, there it must remain whatever division of tenure the statute abolishing entails may make as between members of that class. Until it is exhausted, the heirs of Mrs. Prances Elizabeth Long have no present estate in the land granted. This conclusion seems irresistible from the body of the deed itself. — 520 — The fact of his having by another deed, executed a few. days before, conveyed half of his real estate to his daughter, Mrs. Long, only serves to emphasize it. The judgment is reversed. All concur.