Bradley v. Goff

BOND, C.

This suit to quiet title is brought by plaintiff, J. C. Bradley, who claims under a sheriff’s deed, dated March 17, 1891, following a sale for taxes. *99 Defendants are John W. Goff and Nathan D. Goff, the former a life tenant of the land, and the latter his vendee under a quitclaim, with whom are joined the four children of John W. Goff and the husband of one of them. In their answer the defendants set out their relationship to John "W. Goff, allege that he has no interest in the land described in the petition, having sold his life estate therein to his co-defendant, Nathan D. Goff, and that the estate in fee to said lands belongs to the said children of John W. Goff, subject to the life estate which he conveyed. They pray' the court to adjudge in whom said life estate is now vested, and that said four children be declared to be remaindermen in fee, and that the life tenant be required to conserve the estate, pay taxes, and at the death of John W. Goff to render possession to his children.

Jury was waived, and the cause was submitted to the court upon a stipulation containing an agreed statement of facts, in substance, to-wit:

1. On August 5, 1879, Abbott P. Goff, who then owned the land in dispute executed a general warranty deed to Ms son, John W. Goff, the granting clause of which is, to-wit: “Do by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part (John W. Goff) during the term of Ms natural life, and at his death, then to his lawfully constituted heirs, the following described lots, tracts or parcels of land lying and being situate in the county of Macon, State of Missouri,” etc. The habendum clause is, to-wit: “To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging, or in any way appertaining, unto the said party of the second part (John W. Goff) and to his lawfully constituted heirs, as first herein provided.”

2. That on February 25,1885, the defendant John W. Goff, the grantee in the above deed, by quitclaim *100 deed of that date, duly recorded, conveyed his interest in said land to his co-defendant, Nathan D. Goff.

3. In- October, 1890, suit was brought for taxes on said land against said John W. Goff and Nathan D. Goff, and against no one else. That judgment for taxes was rendered, and a sale under said judgment was made March 17, 1891, and J. 0. Bradley, the plaintiff in this suit, became the purchaser of said land and received a sheriff’s deed therefor, which is duly recorded.

4. J. 0. Bradley, the plaintiff in this case, has had possession of said land since the date of his purchase aforesaid, and is now in possession thereof, under and by virtue of said tax deed.

5. That John W. Goff, the person to whom said deed was made by his father as hereinbefore stated is yet living and has the following children, to-wit: Mary G. McOloy, intermarried with Moses H. McCloy; John W. Goff, Jr., Nathan D. Goff, Jr., and "Waldo P. Goff, Jr. (a minor). These named children are the sole and only lawful heirs of said John W. Goff and to whom the fee in said land would go at this time, was the said John W. Goff, to whom a life estate was granted, as aforesaid, dead.

6. Copies of the deeds referred to in this agreed statement of facts may be introduced in evidence.

The agreement of facts contained other matters not material, and was signed by all the parties.

The court rendered judgment upon the pleadings and evidence, that the plaintiff was the owner in fee of the land described in' the petition, and that the defendants have no right, title or interest in or to the same.

After the overruling of their motion for a new trial, the defendants appealed to this court.

*101 OPINION.

I. Respondent complains in Ms brief tbat tbe abstract filed in this court by appellants fails to show in tbat portion devoted to a recital of the record proper tbat tbe bill of exceptions was duly signed and made a part of tbe record proper, and tbat tbe motiqn for new trial was filed and overruled. While tbe beading of tbe bill of exceptions appears in tbe abstract a paragraph ahead of tbe place where tbe bill of exceptions begins, we do not think tbat alters tbe fact tbat tbe abstract contains a bill of exceptions; nor do we think tbat tbe fact tbat between this beading and tbe beginMng of tbe bill of exceptions there is an intervening paragraph which contains recitals which should appear in tbe record proper, makes them any less a part of tbe record proper because of tbe prefix of tbe beading of tbe bill of exceptions. Tbe character of tbe recitals in tbe abstract is shown by intrinsic evidence afforded by their contents, and no mere mislocation of tbe beading of tbe bill of exceptions can affect tbe character of tbe respective entries. [Sanguinette v. Railroad, 196 Mo. 486 .] We, therefore, overrule the motion in respondent’s brief to dismiss this appeal or affirm tbe judgment.

II. Tbe terms of tbe granting and habendum clauses in tbe deed to John W. Goff created by express terms a life estate in him with tbe remainder in fee at bis death to bis “lawfully constituted heirs.” This latter expresssion is merely a tautological way of referring to bis heirs at tbe time of bis death, for there can be no heirs who are not lawful heirs. Tbe term itself necessarily implies tbat tbe persons included under it are of tbe class “constituted” heirs by tbe law. Hence, tbe redundant, phrase used in tbe present deed meant no more than if tbe word “heirs” had been substituted for it. This being its meaning, tbe persons who shall be tbe lawful “heirs” of John *102 W. Goff at his death are entitled “then” to a remainder in fee in the land described in the deed to him.

The sale of this land by suit for unpaid taxes against the original life tenant and his vendee carried all the title and interest possessed at the time by either of them, but it did not affect the interest of the persons who shall be entitled as remaindermen at the death of John "W. Goff. At the time the tax suit was instituted, the record shows that the estate of John W. Goff was only for his life, and that he did not convey to his vendee, Nathan D. Goff, any greater estate. Hence, the only two defendants to the tax suit were the representatives only of a life tenancy in the land. Necessarily, therefore, the only estate which passed under the sheriff’s deed made after the sale for taxes was the qualified interest of one of the defendants for the life of the other. [R. S. 1909, sec. 11498; Vance v. Corrigan, 78 Mo. 94 .] It was the duty of the owners of the life estate to pay the ordinary annual taxes assessed against the property. [Hall v. French, 165 Mo. l. c. 438; Bone v. Tyrrell, 113 Mo. 175 .] Upon their failure so to do suit was properly brought against them, and, as far as this record discloses, all the title they had in the land passed after the sale for taxes and the deed in accordance therewith executed by the sheriff. The plaintiff’s title in this ease rests wholly on the sheriff’s deed; that deed could not convey to the plaintiff an estate in the lands belonging to other persons than the defendants in the tax suit; and, hence, did not warrant the judgment rendered in this case adjudging the plaintiff was vested with the fee simple title to the land in dispute.

Respondent suggests that the Statute of Limitations ran in his favor. Obviously there is no merit in that contention, for the remaindermen in the deed under review are not yet entitled to the possession of their estate. [Hall v. French, 165 Mo. l. c. 439; Thomas v. Black, 113 Mo. l. c. 70.] Respondent further suggests *103 that the interests of the remainderman under the deed in question is not vendible. This is a misapprehension of the law. [R. S. 1909, sec. 2787; Brown v. Fulkerson, 125 Mo. l. c. 403; Godman v. Simmons, 113 Mo. 127 .]

The finding of the learned trial judge that the plaintiff was seized of an indefeasible estate in fee in the premises described in his petition was erroneous. The plaintiff can have no interest in the premises in question beyond the life of John W. Goff. After his death they belong in fee to the persons who shall “then” be his lawful heirs. They are not at present entitled to any counter-relief against the plaintiff in this action, for they are not yet entitled to possession of the premises, and it cannot be known until the death of John W. Goff who will “then” be his heirs. When that happens defendants may or may not belong to that class.

The judgment is therefore reversed and the cause remanded to the trial court to dismiss the plaintiff’s petition.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.