Altringer v. Capeheart , 68 Mo. 441 ( 1878 )

Norton, J.

This is an action of ejectment to recover possession of eighty acres of land in Henry county. The petition is in the usual form, and the hnswer is a general and specific denial. On the trial judgment was rendered for defendants, from which plaintiff prosecutes his writ of ■error. It was admitted on the trial that Joseph Capeheart entered the laud in controversy from the United States. Plaintiff, to maintain his cause of action, offered in evidence a deed of warranty from Joseph Capeheart and wife, to one Joshua E. Eurgerson, to the laud in controversy, dated November 10th, 1860; also a mortgage on said land from Eurgerson to George Gutridge, dated-, 1863 ; also a sheriff’s deed from Henry T. Dodson, as sheriff of Henry county, to George Gutridge, for said lands, which was sold under decree and judgment of foreclosure of said mortgage from Joshua E. Eurgerson to George Gutridge, said sheriff’s deed was dated October 15th, 1870 ; also warranty deed from George Gutridge and wife to plaintiff in error, dated January 20th, 1874; also second deed of warranty from George Gutridge and wife to plaintiff in error, for said land, dated January 20th, 1874. The defendant, in support of his title, introduced and read in evidence, against objection of plaintiff’s counsel, a certain deed from George Gutridge and wife to Joseph Capeheart, to the land in question, dated November 17th, 1866; also a deed from Joseph Capeheart and wife to Aaron Capeheart and James Capeheart, dated in 1869 ; also a deed from Aaron Capeheart and James Capeheart to defendant, John Capeheart, dated in 1871. It was further admitted by • both parties, on the trial of the cause, that at the time of the execution of the deed of November 17th, 1866, from George Gutridge and wife to Joseph Capeheart, (read in evidence by defendant,) the mortgage from Furgerson to Gutridge was outstanding and unpaid, and belonged to said George Gutridge; and it was further admitted, by both parties, that said mortgage was) afterwards, foreclosed, and that Gutridge purchased the land in controversy at the foreclosure sale.

1 the word “release.”

The controlling question in the case arises upon the construction of the following deed: “Know all men by these presents, that we, George Gutridge and Elizabeth, his wife, of the county of Henry and State of Missouri, have this day, for and in consideration of $1.00, to them in hand paid by Joseph Capeheart, the receipt whereof is hereby • acknowledged, do grant, bargain and sell, and by these presents do grant, bargain, sell and release unto the said Joseph Capeheart, his heirs and assigns forever, the following described real estate, being the same several tracts or parcels of lands conveyed by S. K. Williams, sheriff of Henry county, to said George Gutridge by deed, bearing date October 13th, 1866, and therein fully described and set forth.” Then follows a description of the lands embracing 320 acres, and including the lands in controversy. “To have and to hold the above described real estate free from the claim or claims of all persons whatever. In witness whereof, we have affixed our hands and seals this November 17th, in the year of our Lord one thousand eight hundred and sixty-six. (1866.)

George Gutridge, [seal.]

Elizabeth Gutridge, [seal.]”

The trial court declared' that the words “ grant, bargain and sell,” in the deed, expressed, on the part of Gut-ridge, that he was, at the time of its execution, seized of an indefeasible estate in fee simple in the lands conveyed, and that said lands were free from incumbrances, done or suffered by Gutridge, or any person under him; and also, for further assurauce of such real estate to be made by Gutridge to Capeheart, and that whatever title was acquired by Gutridge at the sale made under the decree foreclosing the mortgage from Eurgersonto Gutridge, dated in 1863, passed to Capeheart by virtue of the deed executed by said Gutridge in November, 1866. Under 1 Wag. Stat., see. 8, p. 274, the words grant, bargain and sell in all conveyances in which any estate of inheritance in fee simple is limited, shall, unless restrained by express terms contained in such conveyance be construed to express all the covenants above mentioned. It is, however, urged by counsel, that the word release contained in the deed, has the effect of restricting the words grant, bargain and sell, so as to destroy the statutory covenants which these words import, and convert it into a deed of mere quit-claim. We think the objection is not well taken. The words grant, bargain and sell first occur in the deed wholly unrestricted, and the deed conveys, in express terms, the land itself to Capeheart and his heirs forever, free from the claims of all persons whatever, and not simply the right, title and interest of Gutridge. We have been cited to the cases of Gibson v. Chouteau 39 Mo. 566; Chauvin v. Wagner, 18 Mo. 531; Bogy v. Shoab, 13 Mo. 380. In no one of these cases do the words grant, bargain and sell occur in the deed, and the deeds considered by the court conveyed only the right, title and interest of the grantors, and they were, therefore, put on the footing of quit-claim deeds under which no after-acquired title would pass.

•2. deeds.

It is also objected that the court erred in admitting the evidence of Capeheart, showing that the deed of 1866, from Gutridge to him, was made in consideration of a conveyance by Capeheart to Gutridge of another eighty acre tract of land. We perceive no error in this, as the consideration clause in a deed is always open to explanation or contradiction. Fontaine v. Boatmen’s Saving Institution, 57 Mo. 553; Miller v. McCoy, 50 Mo. 214.

Judgment affirmed,

in which the other judges concur.

Affirmed.