Ford v. Unity Church Society

CrANTT, P. J. This is an action' of ejectment for the recovery of the south eight feet of lot 6, all of lot 7, and the north two feet of lot 8, all in block 23, in Smith’s addition to the city of St. Joseph. The answer admits possession and denied each and every other allegation in plaintiff’s petition. The case was — 502 — tried to a jury and resulted in a verdict and judgment for the plaintiff. At the trial plaintiff introduced a patent from the United States to Fred W. Smith, a plat of Smith’s addition to the city of St. Joseph and a deed from Smith to James Cargill for lots 3, 4, 5, 6, 7 and 8, all in block 23, of said addition, of which the land sued for is a part. James Cargill, who is the common source of title, died in 1858, leaving a widow, Nancy Gr. Cargill, sometimes called Agnes Gr. Cargill, and four children, George W. Cargill, John 0. Cargill, Agnes Owen and Abby N. Ford. James Cargill left a will which was duly admitted to probata in the probate court of Buchanan county by the second clause of which he gave all his estate real and personal to his wife for life, or until she should marry again. Mrs. Cargill, who survived her husband, lived until 1877, when she died without having married again. By the third clause of James Cargill’s will, he gave, at the death of his wife, his home place, describing it, to his son, George Cargill, whom he appointed as his executor. By the fourth clause of his will, it was provided that at the death of his wife, his executor should take charge of all his property, real, personal and mixed, and after setting aside said home place to his son George, he should select three disinterested persons to divide all the remainder into four equal parts, and to each of his four children he devised and bequeathed one of these parts thus to be divided. In 1879, after the death of Mrs. Cargill, the executor selected three persons, who made division of the lands, of which James Cargill died seized, into four parts, and assigned one of these parts to each of the children named in the will, or to their assigns. The report of these commissioners, is too long to be inserted — 503 — in this statement. The lots sued for appear in that part which was assigned to John Cargill and his assign, the Real Estate Loan Company, through which defendant’s chain of title runs, being named the assignee of this particular portion. Prior to this division, and prior to the death of his mother, even as early as 1860, John 0. Cargill, in conjunction with his wife, Sarah L. Cargill, conveyed by deed of trust his interest in all the real estate which his father owned at his death, to Joseph 0. Hull, trustee, to secure the payment of certain debts in said deed of trust described. Having made default, the trustee, Hull, in 1865 sold and conveyed, under the power conferred by said deed of trust, all the interest of John Cargill in said real estate to his mother, Agnes or Nancy Cr. Cargill. In 1863, by a deed dated September 5 of that year, Mrs. Cargill,' in consideration of one dollar and natural love and affection, made a deed containing covenants of warranty, to her daughter, Abby N. Ford, purporting to convey to her uthe one divided fourth part’ ’ of certain described real estate, including said lots 3, 4, 5, 6, 7 and 8, of which the lots sued for are a part. To the introduction of this deed in evidence by plaintiff, the defendant objected because it was incompetent and irrelevant, because the deed was void, and ineffectual to pass title to any real estate, and because no real estate was described therein. But the court overruled said objection, and the defendant saved its exceptions. In fact, defendant objected to the introduction of every instrument, except the patent, the plat and defendant’s original answer, read in evidence ’ by plaintiff, on the grounds, among others, that such instruments were irrelevant and incompetent, and saved exceptions to the action of the court in overruling defendant’s objections thus made. — 504 — After introducing a deed from Mrs. Abby N. Ford to the plaintiff, who is Mrs. Ford’s son, and the admission by defendant to the effect that at the death of her father, Abby N. Ford was a married woman * and that she continued to be such until February, 1890, when her husband, Erastus D. Ford, died, the plaintiff rested. Defendant demurred to plaintiff’s evidence, which being- overruled, the defendant duly excepted. The defendant’s title, as shown by the deeds introduced in evidence, runs by two chains into Saxton, whence, becoming united, it runs into defendant. One of these chains of title into Saxton, passes from John C. Cargill, by his deed of trust to Joseph Hull, trustee, conveying-his fourth, subject to his mother’s life estate in the land, and by the trustee’s deed from Joseph Hull, trustee, to Mrs. Cargill, and by the warranty deed from Mrs. Cargill to Sarah L. Cargill and by the deed of trust from Sarah L. Cargill to James Hull, trustee, and by the trustee’s deed from James Hull, trustee, to the Eeal Estate and Savings Association, and by the warranty deed from the Eeal Estate and Savings Association to the Eeal Estate Loan Company to A. M. Saxton. All these deeds were executed upon valuable considerations. The other chain of' title into Saxton passed from Abby N. Ford, by the deed of trust of herself and husband to Saxton, trustee, and by the trustee’s deed from ■Saxton, trustee, to John D. Eichardson, and by the deed from John D. Eichardson to Saxton. By these two chains of title, the defendant contends that-two-fourths of the land (the John Cai’gill fourth and the Abby N. Ford fourth) passed into Sax-ton, but that if only one-fourth passed into him, it is sufficient to uphold defendant’s title. The chain of title from Saxton to defendant, passed — 505 — through the warranty deed from Saxton to Eloyd, Ransom and Steinacker, and through the warranty deed from Floyd, Ransom and Steinacker to defendant, the consideration expressed in the former deed being $3,500, and in the latter $4,500. At the close of the evidence, the court gave three instructions which peremptorily required the jury to find for plaintiff, to all of which defendant objected and excepted. Defendant asked eight instructions embodying its views of the law, all of which were refused and it excepted. I. The plaintiff’s case may be stated in a few words. By the will of his grandfather, James Cargill, an estate for life only was given to his grandmother, Agnes G. Cargill, and a remainder of one-fourth to each of his children at her death. That fourth was to be set off by commissioners to be appointed by his executor. After his grandfather’s death on September 5, 1863, his grandmother, who had a life estate in all the lands, made a deed with covenants of warranty to his mother, Mrs. Ford, “in consideration of natural love and affection and one dollar,” which purports on its face to convey a fee simple absolute to the one divided fourth of the real estate devised by her husband, including the land in controversy. He concedes that at that time no division had been made of James Cargill’s lands and none could have been made under his will prior to the widow’s death, and that if the deed is to be construed as it is written, it is void for uncertainty, but he invokes the rule that where one part of a description is false and impossible, but by rejecting that part a perfect description remains, that part should be rejected and the deed held good and effectual, and he therefore asks that the word “ divided” be entirely rejected. That this court has often, in actions at law, rejected — 506 — inconsistent and repugnant clauses in both deeds and wills where their retention was evidently contrary to the intention of the parties, is abundantly attested by its decisions. West v. Bretelle, 115 Mo. 653; Gibson v. Bogy, 28 Mo. 478; Rutherford v. Tracy, 48 Mo. 326. In so doing, however, it was seeking to carry out the intention of the grantor or testator, by a reasonable construction of the language used. .But in Campbell v. Johnson, 44 Mo. 247, while this rule was recognized and approved, it was said: “But if the land granted be so inaccurately described as to render its identity wholly uncertain, then it is admitted the grant is void. (Boardman v. Reed, 6 Pet. (U. S.) 328.) * * * The ambiguity must be patent.” Accordingly in that case, where the description in the deed was “the southwest quarter of section eleven, containing forty acres,” the court was asked to reject the words “forty acres;” Judge Wagner said: “This description, by rejecting the quantity of acres, would pass the title to the whole quarter section. That such was not the intention of the maker of the deed is demonstrable, from the fact that one of the other tracts conveyed is the southwest fourth of the same quarter section. * * * To give effect to the deed according to its literal import, the plaintiff would have eighty acres more than she contracted for. * * * It is not insisted that the plaintiff bought more than the forty-acre tract sued for in this action. * * * The ambiguity is patent and cannot be removed by the application of extrmsic■ evidence. ” Now, if the court had been merely governed by a desire to get a legal description irrespective- of the intention of the grantor, or the right of the case, nothing would have been simpler than to have rejected the number of acres, and it could have called to its aid the familiar canon that “a call for quantity must give — 507 — away to metes and bounds,” but, when it was considered that by rejecting those words, the grantor was made to convey four forty acre tracts instead of one, and his covenants made to convey eighty acres more than he had sold the court wisely left the parties where it found them, and indicated that the place to reform the deed was in equity, where the rights of both could be preserved. See, also, Jennings v. Brizeadine, 44 Mo. 332; King v. Fink, 51 Mo. 209. Now, in this case, what will be the effect of rejecting the word “dividedf” If the deed thereby only conveyed what her mother then owned, or only secured to Mrs. Ford, the daughter, the life estate in the one-fourth of which she owned the remainder, and thereby enabled her to anticipate her father’s will, and realize on her share in remainder, it would be at once conceded that it ought to be done; but when it appears that this is not the purpose, but that plaintiff proposes if this patent ambiguity is removed to claim that it conveyed to Mrs. Ford not her one-fourth, free of her mother’s life estate, but the fourth in fee simple remainder devised to John Cargill, and subsequently bought in by Mrs. Agnes Cargill under foreclosure sale of John’s fourth, it is perfectly evident that a result that never was contemplated by Mrs. Cargill or Mrs. Ford éither, will be attained. That Mrs. Cargill never for a moment considered she had accomplished such a result, is fully evinced by her own warranty deed to Mrs. John Cargill, her son’s wife, made after she had purchased his remainder in fee. Putting ourselves in the place of Mrs. Cargill, and understanding that she only had a life estate in this land, and her daughter, Mrs. Ford, a remainder in a fourth of it, and that Mrs. Cargill had three other children, having the same interest, and that Mrs. Car-gill did not acquire the title to John Cargill’s fourth — 508 — interest in remainder for more than two years after the execution of the deed to Mrs. Ford, is it not clear that she had no intention of giving to Mrs. Ford John’s share when she should buy it? To reject any part of her deed to reach such a result would be to ignore her intention. If Mrs. Ford was not satisfied with.this description she should have applied to her mother in her life time to correct it, for it is very clear that this deed being a simple gratuity, a court of equity would not have enforced it. Mulock v. Mulock, 31 N. J. Eq. 602; Fry on Spec. Perf. of Contracts [2 Ed.], p. 45; Brownlee v. Fenwick, 103 Mo. 420; Anderson v. Scott, 94 Mo. 637. But granting that the word “divided” should be rejected from the description and that the deed is construed to convey one “undivided” fourth, the very opposite of what the grantor declared she was conveying, can the claim of plaintiff be sustained, that the subsequently acquired title of Mrs. Agnes Cargill to the fourth devised to her son John, passed to Mrs. Ford by that deed ? This claim is based upon the statute as it stood in 1855. “If any person shall convey any real estate, by conveyance, purporting to convey the same in fee simple absolute, and shall not, at the time of such eonveyan'ce, have the legal estate in such real estate, but shall afterward acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid, as if such legal estate had been in the grantor at the time of the conveyance.” (1 R. S. 1855, p. 355, sec. 3.) This section came under review in Bogy v. Shoab, 13 Mo. 365. Judge Napton said in that case, in regard to the words fee simple absolute: “It then depends upon the character of the deed, whether it is to be affected by our statute. It must be a conveyance, purporting to pass the fee simple absolute. * * * The term — 509 — fee simple is known at the common law as one which defines the quantity of estate. It is used in contradistinction froiñ a fee tail, a life estate or a term of years. It is evidently not employed in this sense in this provision of the act. It was surely not intended that a quitclaim deed, although the deed uses language to pass the fee, and not any smaller estate, would, therefore, pass a neiv title not belonging to the grantor when he makes the deed. It was hardly intended to apply to adeedconveying allright, title and interest of the grantor. Such a deed will undoubtedly pass the land itself, if the grantor has an estate therein, at the time of the conveyance, but it passes no estate which was not then possessed. Brown v. Jackson, 9 Wheat. 452. * * * So where a party had a vested interest, and also a contingent remainder in lands, and conveyed ‘all his right, title and interest,’ the deed was held only to convey his vested interest, although in this case the deed contained a general warranty. * * * Pell [Pelletreau] v. Jackson, 11 Wend. 110.” Valle v. Clemens, 18 Mo. 486. In Brawford v. Wolfe, 103 Mo. 391, it was held that the doctrine of inurement whether tmder the statute or common law, is raised upon the covenants of title contained in the deed'under which it operates, and consequently the deed of a married woman only operated to pass all her existing right, title and interest, citing Barker v. Circle, 60 Mo. 259; Reese v. Smith, 12 Mo. 348; Bank v. Robidoux, 57 Mo. 446. The common law reason for asserting the title passed by way of estoppel was that it prevented circuity of action, and hence where no right of action ever existed on the covenants and they had been released, extinguished or otherwise closed, some courts held there was no estoppel, and the after acquired estate would not pass. — 510 — To this rule, that where no action existed no estoppel .was created, there are, however, a number of well defined exceptions. Among these Mr. Bigelow, in his work on Estoppel [5 Ed.], 445, mentions as a sixth exception to the rule, that, “where the consideration of the grant with warranty was love and affection only.” In Robinson v. Douthitt, 64 Texas, 101, the father conveyed to his son for love and affection only. The father had previously mortgaged the land. Under the mortgage it was sold and purchased by a stranger, from whom the father subsequently bought again. The father again sold it to a third person. In a contest between the son and the last purchaser from the father, it was held that the father’s purchase from the purchaser under his mortgage inured to the son. Stayton, Justice, saying: “We are of the opinion that the estoppel exists in all cases as against a grantor and subsequent purchasers from him with notice of the prior conveyance, when a valid conveyance, having such covenants as are found in the deed before us, is executed.”' Rawle on Covenants for Title [5 Ed.], sec. 257; 3 Washburn on Real Property, 399, 407, and cases cited. We think the deed in this case must be considered as founded on a consideration of love and affection alone, and that the mere nominal sum of one dollar does not change it into one for bargain and sale. Hatch v. Straight, 3 Conn. 34; Peck v. Vandenberg, 30 Cal. 11; Salmon v. Wilson, 41 Cal. 595; Bradley v. Love, 60 Tex. 472; 1 Devlin on Deeds, sec. 11. But notwithstanding it was a pure donation, if otherwise valid, a subsequent acquired title obtained by Mrs. Cargill would inure, by virtue of its covenants, to'Mrs. Ford, and her grantees as against subsequent purchasers of Mrs. Cargill with notice of said deed. Conceding then it would carry an after acquired title — 511 — as against one having notice, the only notice with which Saxton and his grantees are charged is such as is imparted by our recording acts. ■ When Mrs. Cargill made the deed September 5, 1863, she had no title to the remainder in the fourth of said lands devised to John Cargill, her son, and construing her deed as not void for uncertainty, it purported to convey a fee simple, but it did not and could not pass John Cargill’s fourth until she acquired it in 1865 by the trustee’s deed recorded December 4,-1865. On March 4, 1871, by a warranty deed, she conveyed this share of John Cargill so purchased by her to Sarah L. Cargill, his wife, which deed was duly recorded. By mesne conveyance, for value, Saxton became the purchaser of this John Cargill’s fourth. Mrs. Nancy Cargill died in 1877. Saxton and all the purchasers subsequent to him, bought after Mrs. Car-gill’s death. The question now is, when they came to 'search the record of conveyances, were they bound to look for deeds by her to this fourth, antedating her purchase of this land at the trustee’s sale in December, 1865? Perhaps no more important question affecting the title of real estate could be raised than the effect of this doctrine of inurement of after acquired title by estoppel, considered with reference to our recording acts, when rights of innocent purchasers for value, are involved. Some courts hold that: “The obligation, created by estoppel not only binds the party making it, but all persons privy to him; the legal representatives of the party, those who stand in his situation by act of law, and all who take his estate by contract, stand in his stead, and are subjected to all the consequences which accrue to him. It adheres to the land, is transmitted with the estate; it becomes a muniment of title, and all who afterwards acquire the title take it subject- to the — 512 — burden which the existence of the fact imposes on it. These principles had their origin at a very early period in the common law.” Douglass v. Scott, 5 Ohio, 198; Knight v. Thayer, 125 Mass. 25/ Now this language is broad enough, if logically followed, to lead to the result that the after acquired title vested in the grantee, not only as against the grantor and his heirs but as against a subsequent purchaser from the latter of the after acquired title. Mr. Rawle, who has given the subject a most thorough and rigid analysis, says: This rule, when applied to the case of a bona ficle purchaser for value without notice, “can not harmonize with the spirit of the registry acts in force in this country, and leads to the position, which certainly can not be considered as tenable, that a purchaser must search the registry of deeds, not only from the time when his grantor acquired title, but also for a series of years before that time, in order to discover whether he had previously made any conveyance (though without title) to any other person; for if he have, that person will, according to this doctrine, hold the estate as against this purchaser, and if the property has passed through severaPhands, a similar search must be made” as to each. Covenants for Title [5 Ed.], sec. 259. He says nothing is more simple than what is termed “the line of title.” It is that the first purchaser should search the registry for'the deed to his vendor, and trace the title thence back to its source. If he finds no title in him, as would have been the case here, then it is his fault if he takes the deed. Now as to the second purchaser, one who buys after the vendor acquires a title. He searches till he finds the deed to his vendor, and traces the title back to its source. He finds it regular and that since his vendor acquired the title he has not conveyed to any one else. He is not expected to look for conveyances from — 513 — his vendor prior to the time the vendor acquired the title. “Yet,” as Mr. Rawle says, “according to the practical effect oí the doctrine now being considered, and apart from counter equities, the purchaser, having thus brought himself within all the provisions of the registry laws, is not protected at all if his vendor had, before he acquired title, conveyed to another, with covenants, a title which was without existence or value,” Ibid. Judge Hare concurs in Mr. Rawle’s views and says in a note to Duchess of Kingston’s Case, 2 Smith’s Leading Cases [8 Ed.], p. 744: “It necessarily tends to give to a vendee who has been careless enough to buy what the vendor has not got to sell, a preference over subsequent purchasers who have expended their money in good faith and without being guilty of negligence.” In Crockett v. Maguire, 10 Mo. 34, Judge Scott said, “The registry of a deed is only evidence of a notice to after purchasers under the same grantor.” In Dodd v. Williams, 3 Mo. App. 278, the St, Louis court of appeals held that an examiner of titles was not bound to examine for deeds of any person in the chain of title before the date of-his record title. In Calder v. Chapman, 52 Pa. St. 359, Judge Read said: “It is said that, ‘if a man sells and conveys land to which he has no right or title, and afterwards buys or acquires the title to the same land, he can not claim it as against his grantee;’ and, whether this rule is based on estoppel or rebutter, or upon the equity as practiced in Pennsylvania, by which that which ought to be done is considered as done, is perhaps immaterial, as the effects of our recording acts must be the same in either case. * * * ‘It is a doctrine * * * when properly understood and applied, that concludes the truth in order to prevent — 514 — fraud and falsehood, and imposes silence on a party only where, in conscience and honesty, he should not be allowed to speak.’ Now, in the present case, in searching for incumbrances or conveyances, the search against Calder would begin with his title from Chapman, and the search beyond would be against Chapman and those through whom he claimed; and a search against Calder during the same period would be considered an utter absurdity.” In Ely v. Wilcox, 20 Wis. 523, it is said: “In Massachusetts it is held that in searching the title it is not necessary to search the record, as against an antecedent grantor of the land, further than the registry of a deed duly executed by him, and that when such a deed has been registered, a purchaser under the grantee will not be affected with notice of a prior deed recorded subsequently but before the period of his purchase. Connecticut v. Bradish, 14 Mass. 296; Trull v. Bigelow, 16 Mass. 418; Somes v. Brewer, 2 Pick. 184.” And the Massachusetts rule is approved by the Wisconsin court. Odie v. Odie, 73 Mo. 289; 2 Pom. Eq. Juris., sec. 658. Our conclusion is, that a recorded deed by one ;who has no title, but who afterwards acquires the title ;by recorded deed, is not constructive notice to a subsequent purchaser in good faith from the common grantor. We think, when he searches till he finds the deed by which his grantor acquires the title, he is not bound to look for deeds made prior to that time. Such prior deeds are not “in the line of title,” as that term is used by conveyancers and searchers. When Saxton and those who claimed under him bought, Mrs. Agnes Cargill was dead. The fourth they'bought on the face of the deed purported to be John Cargill's fourth. That fourth was conveyed to Sarah Cargill by Mrs. Agnes Cargill. Looking back, — 515 — then, they would discover that John Cargill’s fourth was sold to his mother in December, 1865. The mother was dead. Were they required to look back of the time she acquired John’s fourth to see whether she had deeded it to Mrs. Eord, in 1863? We tnink not. But plaintiffs claim, that, admitting the rule to be as we think it most clearly should be, still Mrs. Sarah Cargill was bound to look back and see whether Mrs. Agnes Cargill had not conveyed her life estate in John’s share which she was conveying to her. For several reasons we think this will not avail plaintiff. First. There are no words in the deed of 1863 to Mrs. Ford that in any manner indicate that Mrs. Agnes Cargill had the slightest intention of conveying the John Cargill share at that time, and as she was conveying only one fourth out of four, and as she had no title to John’s share, there was nothing in that deed which would .carry notice as to her life estate in John’s share. Gatewood v. House, 65 Mo. 663. But more than that, John Cargill, by his father’s will, only took a fourth in remainder. He only mortgaged a fourth in remainder. His mother only bought what he mortgaged, and by her deed, she only conveyed what she purchased at that sale, so that her life estate was not involved in the examination, and we must hold that the subsequent purchasers were unaffected by Mrs. Ford’s deed, even if it were not void for uncertainty. The plaintiff and his mother have paid no taxes on this land since obtaining the deed in 1863, have asserted no title, and his claim is wholly without merit. The judgment of the circuit court is reversed. All concur.