Summary
In Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310 (1946), the deed to Rush was joined in by the life tenant, and her then apparent bodily heirs, who were her children who in fact survived her. It was held that they derived their title as purchasers from the original grantor, Fountain Hale, and that they held title contingently after that deed subject to it being defeated by their predeceasing their mother or by being defeated in part by the birth of other children who would qualify as heirs of the body.
Summary of this case from Epley v. EpleyOpinion
No. 39825.
November 11, 1946.
DEEDS: Estates: Heirs of the Body: Contingent Remainders Pass by Quitclaim Deeds. A deed "to Virginia I. Grimes for life and then to the heirs of her body" was converted by statute from a fee tail to a life estate with contingent remainders in her children. Under Sec. 3401 R.S. 1939, such contingent remainders were alienable and the quitclaim deeds of the children of Virginia I. Grimes conveyed the fee simple estate which became vested upon the subsequent death of the life tenant without any additional heirs.
Appeal from Dallas Circuit Court. — Hon. C.H. Jackson, Judge.
AFFIRMED.
Herman Pufahl for appellants.
(1) The deeds from Virginia I. Grimes and from all of the plaintiffs and from Anderson were all on record when D.M. Rush purchased the land; they were all "quitclaim" deeds, and Rush had notice of that fact, and took the title with such notice, and any infirmities that there might be in the title. Starr v. Bartz, 219 Mo. 47; McAboy v. Packer, 187 S.W.2d 207. (2) The deeds from plaintiffs are all quitclaim deeds. A deed is a quitclaim deed where it employs the word, "quitclaim" in connection with the words, "Grant, Bargain, Sell", etc. 18 C.J., p. 156, sec. 32; Bruce v. Luke, 9 Kan. 201, 12 Am. Rep. 491; State v. Kemmerer, 14 S.D. 169, 84 N.W. 771; Gibson v. Chouteau's Heirs, 39 Mo. 536; Butcher v. Rogers, 60 Mo. 138; Van Rensseler v. Kearney, Book 13 L. Co-op. Pub. Co., 703; Douglas v. Hammell, 285 S.W. 433; Williams v. Reid, 37 S.W.2d 537; Greek Catholic Congregation v. Plummer, 127 A.L.R. 1008; McAboy v. Packer, 187 S.W.2d 207. (3) Under the quitclaim deeds the defendants did not acquire the vested title which plaintiffs acquired upon the death of Virginia I. Grimes. It is the law that a person under a quitclaim deed acquires only whatever title the grantor has at the time of the delivery of the deed; therefore the judgment should have been in favor of plaintiffs. Starr v. Bartz, 219 Mo. 47; Buxton v. Kroeger, 219 Mo. 224; Williams v. Reid, 37 S.W.2d 537; Inlow v. Herren, 267 S.W. 893; Douglas v. Hammell, 285 S.W. 433, 313 Mo. l.c. 525; Smith v. Washington, 11 Mo. App. 519; Smith v. Washington, 88 Mo. 475; Bogy v. Shoab, 13 Mo. 265; Valle v. Clemens, 18 Mo. 486; Gibson v. Chouteau's Heirs, 39 Mo. 536; Butcher v. Rogers, 60 Mo. 138; Mann v. Best, 62 Mo. 491; Vance v. Humphries, 141 S.W.2d 91; Bruce v. Luke, 12 Am. Rep. 491; Van Rensseler v. Kearney, Book 13 L. Co-op. Pub. Co., 703; State v. Kemmerer, 84 N.W. 771; Helmick v. Davenport, R.I. N. Ry., 156 N.W. 736, 174 Iowa 558; Layton v. Herr, 90 N.E. 645; Haskett v. Maxie, 19 L.R.A. 379; Mosier v. Carter, 35 L.R.A. (N.S.) l.c. 1190; U.S. Natl. Bank v. Miller, 58 A.L.R. 339; Greek Catholic Congregation v. Plummer, 127 A.L.R. 1008; 18 C.J. 314, sec. 299; 16 Am. Jur., p. 560, sec. 219; Barron v. Williams Cooperage Co., 185 Mo. App. 625; Holland v. Blanton, 162 A.L.R. 553; Gould v. Ledbetter, 129 Me. 101.
Haymes Haymes for respondents.
(1) The deed from Fountain Hale to Virginia I. Grimes gave a life estate to Virginia I. Grimes, with a contingent remainder to the heirs of her body. The plaintiffs in this case had an interest in the land which was alienable by them, during the life of Virginia I. Grimes, even by quitclaim deed. Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; White v. McPheeters, 75 Mo. 286; Bopst v. Williams, 287 Mo. 317, 229 S.W. 796. (2) A quitclaim deed is a deed of active conveyance of title, and not merely a release. Johnson v. Johnson, 170 Mo. 34, 70 S.W. 241; 5 Thompson on Real Property, sec. 2812; Buller v. Buller, 145 P.2d 653.
The underlying issue is whether a quitclaim deed passes a contingent remainder interest of the fourth class; that is, a contingent remainder wherein the person to take is not ascertained as of the date of the grant. More precisely: Does the quitclaim deed of presumptive "heirs of the body" of the life tenant during the life tenant's lifetime divest such grantors of their chance to succeed to the title in the event they survive and classify as "heirs of the body" on the death of the life tenant? [311] Missouri cases in effect rule the issue in the affirmative. The instant action was to determine title, for ejectment and for partition of land in Dallas county. The facts are few.
Fountain Hale, the common source of title, and his wife, conveyed the real estate in 1886 "to Virginia I. Grimes for life and then to the heirs of her body." Virginia I. Grimes had three children: A.C., Bertha (now Boone), and Thersa (now Welker), the plaintiffs here. Arrangements were made for the purchase of the land by Elvin Anderson in 1919. Mrs. Grimes came from Oklahoma to Missouri to close the transaction. She was accompanied by her daughter Thersa and brought with her deeds to the land from A.C. and Bertha. Plaintiffs contend that all of the deeds were quitclaim deeds. Defendants contend the covenants in some of the deeds caused them to be more than quitclaim transfers. We proceed on the theory they were quitclaim deeds without discussing defendants' contentions arising from the different language in the several deeds. The deed of Mrs. Grimes and her husband is dated April 7, 1919; that of Bertha Boone and her husband is dated April 9, 1919; that of A.C. Grimes is dated January 8, 1915; and that of Thersa is dated April 18, 1919. A.C. and Thersa were single at the time of their respective conveyances. Each of said deeds recited that the consideration was "One Dollar and other valuable considerations." Each was duly filed and recorded on December 17, 1919.
Virginia I. Grimes died in 1940. All of her said children survived her and qualified as heirs of her body and as the sole heirs of her body. D.M. Rush acquired the real estate. He died intestate. The defendants Earl M. Rush, Norma Cowden, Loise Rush, Lascelles Rush, and Di'Lores Horst are his sole heirs. Defendant Lowell Parscale occupies land as tenant.
Fountain Hale's deed would have created an estate tail at common law. This estate was transformed by our statute (Sec. 3498, R.S. 1939) so far as essential here, so as to vest a life estate in the land in Virginia I. Grimes and a contingent remainder in her children and the fee in said children surviving her and qualifying as "heirs of her body," the contingency existing as to persons not ascertained when the grant was made, contingent remainders of the "fourth class." 1 Fearn on Remainders, p. 4; 31 C.J.S., p. 91, n. 38.
Contingent remainders of this class were considered merely a possibility of an estate at common law and, for that reason, not alienable inter vivos to strangers. The modern rule is that contingent remainders are ordinarily alienable. Based upon statutory enactment (Sec. 3401, R.S. 1939, authorizing the conveyance "of lands, or of any estate or interest therein"), Missouri cases rule in broad terms that contingent remainders are alienable. Sufficient reasons, founded on statute and departures of modern life from that existing under the English Feudal system, are stated in Godman v. Simmons, 113 Mo. 122, 129, 20 S.W. 972, 973. Present day contingent remainders may not be defeated through the ancient method of fine or recovery. They constitute interests in land of far greater dignity and substance than existed when they were held inalienable at common law. The reasons for restraints on alienation under the feudal system no longer exist.
See, among others, Bopst v. Williams, 287 Mo. 317, 332(V), 229 S.W. 796, 800[7] (citing cases); Schee v. Boone, 295 Mo. 212, 224, 243 S.W. 882, 885[7]; Brown v. Fulkerson, 125 Mo. 400, 28 S.W. 632; Summet v. City Realty Brok. Co., 208 Mo. 501, 513(IV), 106 S.W. 614, 617(4); Donaldson v. Donaldson, 311 Mo. 208, 278 S.W. 686. Consult generally 31 C.J.S. Estates, p. 101, Sec. 88, c; 21 C.J. Estates, p. 998, Secs. 156, 157; 26 C.J.S. Deeds, p. 189, Sec. 15, b, p. 414, Sec. 117; 18 C.J. Deeds, p. 318, Sec. 310, p. 162, n. 39; 33 Am. Jur., Life Estates, Remainders, etc., p. 616, Sec. 150; 2 Restatement, Law of Property, p. 587, Sec. 162; 4 Thompson, Real Property, 771, Sec. 2230; 2 Tiffany, Real Property (3rd Ed.), p. 73, Sec. 341; 3 Simes, Future Interests, p. 145, Secs. 708-714; 4 Kent's Commentaries, p. *261; Kales Estates, Future Interests, etc. (2d Ed.), p. 335, Secs. 320-322; 5 Mo. Law Bulletin, p. 14.
But, plaintiffs claim the conveyances [312] in Godman v. Simmons, supra, were more than quitclaim transfers of the contingent remainder interests; that quitclaim deeds do not convey after-acquired titles; and that, hence, their quitclaim deeds did not pass their contingent remainders which vested upon the death of the life tenant. A "remainder" implies that part has been previously disposed of; and a characteristic of a remainder is that it commences or passes out of the grantor at the time the particular estate is created. 31 C.J.S., p. 94, 2 Blackstone 165, 167(2). Section 3500, R.S. 1939, provides that where a remainder is limited to the heirs of the body of the life tenant that the remaindermen who qualify as "heir or heirs of the body" "take as purchasers in fee simple, by virtue of the remainder so limited in them." Thus, the plaintiffs derived their title as purchasers under the deed of Fountain Hale and not by inheritance from their mother. Heady v. Crouse (Banc), 203 Mo. 100, 119(II), 100 S.W. 1052, 1057, 120 Am. St. Rep. 643. They held their title contingently from and after said deed until the death of their mother; that is, subject to it being defeated by their predeceasing their mother or being defeated in part by the birth of other children who with them thereafter qualified as "heirs of her body." The only title they now set up is that of a purchaser under said deed and this record discloses they rely solely upon their grandfather's said deed. This is not the after-acquired title involved in plaintiffs' cases; for instance, Williams v. Reid (Mo.), 37 S.W.2d 537, a title acquired subsequently to the quitclaim deed.
We have ruled: "For the purpose of transferring title a quitclaim is as effective as any other deed, barring outstanding equities, not the subject of record, and barring recourse on covenants of warranty." Weissenfels v. Cable, 208 Mo. 515, 534(III), 106 S.W. 1028, 1034 (3). See Hendricks v. Calloway, 211 Mo. 536, 563 (V), 111 S.W. 60, 68(5); 26 C.J.S. Deeds, p. 189, nn 59, 63, p. 415, Sec. 118; 18 C.J. Deeds, p. 314, Sec. 299, nn 52-54; 16 Am. Jur. Deeds, p. 625, Secs. 331, 332. The discussion in Godman v. Simmons, supra, proceeds on the theory quitclaim deeds were before the court. The deeds involved in Donaldson v. Donaldson and Schee v. Boone, cited in the note supra, included quitclaim conveyances of contingent remainders of the fourth class although any possible effect of that factual element was not discussed. Our holdings that a contingent remainder held by a judgment debtor is subject to effectual sale under execution are in harmony. Bock v. Whelan (Mo.), 30 S.W.2d 607, 608[4]; Donaldson v. Donaldson, supra; Gordon v. Tate, 314 Mo. 308, 284 S.W. 497; White v. McPheeters, 75 Mo. 286; Annotation, 60 A.L.R. 803.
The answer set up the title in defendants as hereinbefore discussed. It stated facts sufficient to support the judgment.
Accordingly, the quitclaim deeds of the contingent remaindermen in 1919, the then heirs apparent of the tenant for life, were effective to transfer all the right, title, and interest in and to the land they then held, i.e., their chance to succeed to the fee simple estate, their contingent remainders; and upon their surviving the life tenant as the sole "heirs of her body" said deeds effected the transfer of the fee simple title to said land to their grantee and through him eventually to defendants. What we have said disposes of the collateral matters mentioned in the briefs.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.