McAnaw v. Tiffin

Burgess, J. This is an action of ejectment for the possession of lots ten and twelve, block fifty-seven, in the city of Cameron, Clinton county. The action was begun on the twenty-fifth day of September, 1895, against E. E. Dickover and Clayton Tiffin, tiie petition being in the ordinary form. The defendant Clayton Tiffin filed his separate answer, alleging that on the twenty-eighth day of January, 1892, he contracted in writing with Peter E. Clark, now deceased, for the sale of said lots to him and in pursuance to such contract put said Clark in possession of said lots on said date; that on the twenty-fifth day of September, 1895, he and his wife conveyed all their interest in the lots to Margaret Clark. He disclaims any interest in the lots. The defendant Dickover by his separate answer admits that he was in possession on and before April 21, 1895, but alleges that his possession was lawful as tenant of Peter F. Clark now deceased. Admits that he occupied said lots as such tenant from the date aforesaid to the first day of January, 1896, and that since said date he has occupied thelots as tenant of Mai’garet Clark, whom he alleges is the owner. Margaret Clark, on her motion, in — 673 — which she alleges among other things that she is executrix of the estate of Peter F. Clark, deceased, was made a party defendant. Margaret Clark, by her separate answer, denies that on the twenty-first day of September, 1895, or at any other time, the defendants or either of them unlawfully entered said premises or any part thereof and unlawfully withholds possession thereof from plaintiff. But she admits that the defendant Dickover at said date was, and before and since has been in possession of said lots and premises as tenants of Peter F. Clark, now deceased, and of this defendant, and she alleges that his possession was and is lawful. She then sets up an equitable defense to the suit. The trial was before the court and a jury. Samuel Matthis, Sr., is the common source of title. On the trial plaintiff showed that by sheriff’s deed of date September 17, 1895, he had acquired whatever title or interest Samuel Matthis, Jr., had in the lots, proved the value of the rents and profits, and rested. Defendants then read in evidence the following deeds to wit: First. “This indenture made on the tenth day of June, A. D. 1891, by and between Samuel Matthis, Sr., of the county of Clinton and State of Missouri, party of the first part, and Ada L. Matthis, of the county of Clinton and State of Missouri, party of the second part, mtnesseth that the said party of the first part, in consideration of the sum of love, affection and care of myself and one hundred dollars to him in hand paid, by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents, remise, release and forever quitclaim, unto the said party of the second part, the following described lots, tracts or parcels of land, lying, being and situate in the — 674 — county of Clinton, and State of Missouri, to wit: all of lots No. ten and twelve in block No. fifty-seven in the town (now city) of Cameron, in the county and State aforesaid. “This deed of quitclaim is made with the understanding the party of the second part will take care of and see that he is properly treated during his lifetime. “To have and to hold the same with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part, and her heirs and assigns forever; so that neither the said party of the first part, nor his heirs, nor any other person or persons for him or in his name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and every one of them shall by these presents be excluded and forever barred. “In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. Samuel Matthis, Sr. [Seal].” Said deed was acknowledged in due form on the tenth day of June, 1891. And was on the tenth day of September, 1891, filed for record in the recorder’s office. Second. Deed of general warranty, dated January 6, 1892, executed by Samuel Matthis, Jr., and Ada L. Matthis as husband and wife, conveying the lots in question to Clayton Tiffin in consideration of $5,000. Duly acknowledged and recorded January 9, 1892. Third. Deed of general warranty dated January 22, 1892, from Clayton Tiffin, conveying to Julia A. Tiffin, his wife, consideration $1 and love and affection, the property in controversy. Duly acknowledged and recorded, January 23, 1892. Defendants offered in evidence deed from Clayton Tiffin and Julia A. Tiffin his wife, conveying to Mar — 675 — garet Clark the property in controversy and lots 2, 4 and 6 and north half of 8, and other property. The operative words are: “Bargain, sell and convey, all the right, title and interest owned by grantors or either of them January 28, 1892, and at this date.” Duly acknowledged and recorded, September 28, 1896. Plaintiff objected to the introduction of the above deed for the reason that it was neither made nor recorded until after the institution of this suit. Which objection the court overruled, .to which ruling the plaintiff then and there excepted. Thomas E. Turney on behalf of defendant, testified: “I know that the deed of Samuel Matthis to Ada L. was delivered before the death of Samuel Matthis. Mrs. Matthis had it in her possession and showed it to me and I read it.” Defendants then rested. The plaintiff in rebuttal proved that at the time of the execution of the deed from Samuel Matthis, Sr., to Ada L. Matthis that she was the wife of Samuel Matthis, Jr., and that at that time and for at least two years next preceding, Samuel Matthis, Sr., was demented and incapable of attending to any kind of business, of which said Ada was fully advised. That on the twenty-third day of July, 1891, Samuel Matthis, Sr., was adjudged to be of unsound mind by the probate court of Clinton county, and on the following day Virgil R. Porter was duly appointed guardian and curator of his personal estate, who thereafter filed his inventory of the property of his ward, which embraced the lots in question and the furniture and fixtures in the hotel building situated on said lots. That said Porter instituted suit as curator of said Matthis, Sr., to set aside the deed to Ada Matthis, but that his ward died before the termination thereof. That Porter as such curator collected the rents of the real estate — 676 — monthly from Cable, the tenant in possession. After Porter was appointed curator of Matthis, Sr., he caused him to be taken to the house of one Mrs. Adams where he remained until his death which occurred on the third day of September, 1891. All evidence introduced by plaintiff in rebuttal tending to show that Samuel Matthis, Sr., was insane at the time of the execution of the deed by him to Ada L. Matthis, and the appointment of a guardian for him thereafter and the disaffirmance of said deed by his guardian was stricken out on motion of defendants, to which ruling of the court plaintiff objected, and saved his exceptions. Plaintiff next offered in evidence, but which was excluded by the court, the deposition of one J. A. Cable, taken in an action in said circuit court, wherein Henry C. Coit et al. were plaintiffs, and Clayton Tiffin et al. were defendants, for the purpose of setting aside the deed from Samuel Matthis, Sr., to Ada Matthis, upon the ground that it was obtained by fraud and undue influence and the mental incapacity of said Samuel Matthis, Sr., to make it. Defendants then asked and the court gave an instruction to the jury in the nature of a demurrer to the evidence, to which plaintiff excepted. Whereupon plaintiff took a nonsuit with leave to move to set the same aside, which said motion being overruled he sav.ed his exceptions, and appealed. We will treat the case as if Samuel Matthis, Sr., was insane at the time of the execution of the deed to Ada L. Matthis, and that a guardian was thereafter appointed for him and that his acts of disaffirmance of this deed were as herein stated, for it is upon that theory that the case is presented here. The first point raised by appellant is with respect to the sufficiency of the deed from Samuel Matthis, — 677 — Sr., to Ada L. Matthis, the contention being that the operative words in the deed are those of release only, and as the evidence did not show any prior estate or possession in the grantee for the release to operate upon as a common law conveyance, the deed was void.’ The operative words in the deed are “remise, release and forever quitclaim,” and under the rulings of this court, are sufficient operative words of conveyance. Thus in Wilson v. Albert, 89 Mo. 537, the same operative words were used in a deed of quitclaim then under consideration, and it was ruled that the deed contained sufficient operative words of conveyance. The same rule was subsequently announced in Bray v. Conrad, 101 Mo. 331, and must be regarded as the settled law of this State. Nor do we think the deed conditional. It is an ordinary deed of quitclaim, the consideration expressed being love, affection, and care of the grantor, and $100 to him in hand paid. It is true that it contains the further recital that “that this deed of quitclaim is made with the understanding the party of the second' part will take care of and see that he is properly treated during his lifetime.” But it contains no condition expressed or implied. It is no more conditional than if it had provided that it was made with the understanding that the grantee should pay a moneyed consideration for the lots at some time thereafter. It does not contain any clause by which it was to become void upon the failure by the grantee to comply with any of its provisions, or by which the grantor is given the right to re-enter. In case of non-compliance with its terms, the grantor’s only remedy upon that ground was by action for damages, for breach of the covenants in the' deed. In Studdard v. Wells, 120 Mo. 25, it was said: “It is a familiar rule often asserted in the books that conditions subsequent are not favored in the law, because — 678 — they have the effect in case of breach to defeat vested estates; and when relied upon to work a forfeiture, they must be created in express terms or by clear implication. And courts will construe clauses in deeds as covenants rather than conditions, if they can reasonably do so.” To hold that this deed contains a condition subsequent is to inject into it something that it does not contain, which we are not at liberty to do. It is contended by plaintiff that the deed from Samuel Matthis, Sr., to Ada L. Matthis, if not absolutely void, was at least voidable by his guardian after inquest, and that his guardian did disaffirm said deed. As to whether or not the deed of an insane person made before inquest is void, or only voidable, the authorities are in conflict. It was held in Dexter v. Hall, 15 Wall. 9; In re Desilver, 5 Rawle, 111; Van Deusen v. Sweet, 51 N. Y. 386, that the deed of an insane person is void, but the great weight of modern authority is to the effect that such a deed is voidable only at the instance of the grantor’s guardian thereafter appointed, his heir or legal representatives. Wells v. Mut. Ben. Ass’n, 126 Mo. 630; Arnold v. Iron Works, 1 Gray, 434; Crawford v. Scovell, 94 Pa. St. 48; Grillen v. Maxwell, 34 Kan. 8; Burnham v. Kidwell, 113 Ill. 425; Copenraht v. Kienby, 83 Ind. 18; Fay v. Burditt, 81 Ind. 433; Biggan v. Green, 80 N. C. 236; Breckenridge Heirs v. Ormsly, 1 J. J. Marsh. 236. There is likewise much conflict in the authorities as to whether or not, in case a valuable consideration was passed for such a deed, it is a necessary prerequisite to its annulment that the consideration be returned to the grantee and he placed in statu quo; but it is unnecessary in this case to pass upon that question, for while no valuable consideration was received by Samuel Matthis, Sr., for the property conveyed by the deed now under consideration, it passed the title in fee, even though the grantee, Mrs. Matthis, — 679 — took the deed with full knowledge of the imbecility of Samuel Matthis, Sr. The question then is as to the disaffirmance of the deed by the guardian of the grantor. Upon his appointment the guardian inventoried the property in question as the property of his ward,' collected the rents, and instituted suit to prevent the grantee from so using the deed as to cast a cloud upon the title of his ward, and alleging the fee simple title to be in him. This was all done within a reasonable time after his appointment as guardian; but before the termination of the suit the ward died, and by reason thereof all authority of the guardian as such ceased. No steps were thereafter taken by the administrator or heirs of Samuel Mat-this, Sr., to disaffirm his deed, and no one else had the right to do so. Bollet v. Heiman, 120 Ind. 520; Devlin on Deeds [2 Ed.], sec. 75. Upon the contrary, Samuel Matthis, Jr., the only heir, ratified the deed to his wife on the sixth day of January, 1892, if not before, by joining her in a deed by which the property was conveyed to the defendant Clayton Tiffin. We are not inclined to hold that the mere collection of rents by the guardian, and the institution of the suit by him are disaffirmance of the deed, and all other acts done by him in that direction ■ were sufficient to that end, but rather that the abatement of that suit by the death of the ward which does not seem to have been renewed by his administrator or his heir was an abandonment of any such purpose. We therefore think that the acts of the guardian did not divest the title of Mrs. Matthis. There was no error committed in excluding the deposition of J. A. Cable taken in another suit in which Henry O. Coit et al. were plaintiffs and Clayton Tiffin et al. were defendants, because immaterial. Our conclusion is that the judgment should be affirmed, audit is so ordered. Q-antt, P. J., and Shekwood J., concur.