44 Mo. 560 | Mo. | 1869
delivered the opinion of the court.
This is an action of ejectment, which was originally brought in the Land Court, but transferred to the Circuit Court, to recover
The deed, after reciting the seizin in fee of said Adolph in two parcels of land, to-wit: First, in a lot in the town of St. Ferdinand, describing it; and, second, in the lot in controversy, describing it, proceeds as follows: “Now, therefore, the said Adolph Dantin, being free from debt, desires to make provision for his wife and children by limiting the real estate aforesaid to certain uses and trusts, in consideration whereof he declares and says he is lawfully married to Cecile Clement, his present wife, by whom he has five children now living, to-wit: Adolph, Francois, Cecile, Therese, and Louise, the oldest of said children, Cecile, being about twelve years of age. And in further consideration of the premises the said Adolph doth grant, agree, declare, and say, that from henceforward he will be and stand seized in fee simple of the lot of ground first above described, and the buildings thereon situated, to the sole and separate use, benefit, and usufruct of his wife, the said Cecile Clement, during her natural life, and after her death for the use, benefit and usufruct of the five children of said Cecile above named, and their heirs, and none others, so that during the lifetime and after the death
Adolph Dautin obtained his divorce in May, 1844, and, four or five years after, married Amanda, by whom were born his other children, survivors of whom are defendants. In July, 1857, he deeded to one Castollo the north half of the premises in controversy, in trust for his said wife Amanda during her life, remainder to their joint issue, which deed was immediately acknowledged and recorded. In 1853 the said Adolph made his will, by which he gives everything to his wife Amanda during her life and widowhood, remainder to her children by him, except a life-interest to his divorced wife in another parcel of land; and Amanda Dantin makes her will, giving everything to her children.
The right of the plaintiffs to anything depends, in the first instance, upon the validity of the covenant to stand seized, executed by Adolph and Cecile Dantin ; for, if that deed fails, their right is cut off by the deed in trust to Castello, and the will. This first instrument is attacked upon the ground that it was not put on record until 1859, about the time of, perhaps a little after, the death of the covenantor. No evidence was offered tending to prove any fraud or deception in procuring it; but it seems to have been a deliberate settlement by and between the parties as to the two lots mentioned, giving one to the wife during her life, remainder to their children, and the other to the husband during his life, remainder to his children. The fact that he obtained a divorce in a short time, swearing to his charges against her on the very day of executing the instrument, and the fact that she made no opposition to his application, show that this division of the property and settlement upon children was made in view of their probable separation. We have only then to consider its validity as affected by being withheld from record.
At common law there was no obligation to put upon record a conveyance affecting the title of land. But the duty of registration is now imposed upon the grantee, or the person to whom, or for whose use, the conveyance or covenant is made ; and, as in all other cases where a duty is imposed, he who neglects it should suffer the consequences. The object of the requirement is to compel an exhibit of titles to facilitate transfers, but principally to guard purchasers against imposition; and hence, if the prior deed is not recorded, a subsequent buyer, for good consideration, without notice, will be protected. This protection, always thrown around an innocent purchaser, and to which our statute also expressly entitles him, is founded on the broadest equity. lie receives it not because the prior deed is invalid in itself — the duty of recording it is not enforced by any such penalty — but because justice will not suffer a person who omits a plain duty to set up a claim against one who has been led by that omission to invest his money in what he supposed his vendor had a right to
To the suggestions of defendants’ counsel in relation to presumptions and limitations arising from the adverse possession of the covenantor, Adolph Dantin, it is only necessary to say that he never held adverse possession, but was possessed according to the terms of the covenant upon which this suit is based, being seized to his own use for life. While so in, he could do nothing to impair the estate in remainder; and, not having reserved the power, he could neither revoke nor declare new uses. (2 Blackst. Com. 335.)
There is no defect charged upon the covenant itself, of 1844, and holding it not to be invalid for want of registration, nor from the subsequent acts of the covenantor, we have only to consider its legal effect; and the first question is whether the remainder is vested or contingent, as it becomes important in determining
But the disposition in this respect of the second lot, and which is the one in dispute, is not so clear. Had the provision been that the use, etc., should “revert and vest in said five children above named, and such other children as shall in lawful wedlock be by him begotten,” leaving out the words of qualification following, “ as shall be living at tfi.e time of his death,” the intention would be plain to place all born and to be bom upon the same footing, and the remainder would vest at once in the living children and open up to receive any that might be bom, and vest in them as soon as born. (4 Kent, 205.) Or had the language been, “ shall revert and vest in such of his said five children above named, and such other children in lawful wedlock by him begotten, as shall be living at the time of his death,” the remainder would be contingent as to all the persons, and could not vest until his death had determined in whom it should vest. (2 Blackst. Com. 170.) But if w.e follow the plain language of the deed, the remainder seems to be both vested and contingent— vested as to the children of the covenantor then living, and contingent as to those who were to come after.
A covenant that creates both a vested and contingent remainder in the same property in doubtless unusual, but I know of no principle of law to prevent it. No practical inconvenience can follow; for when the remainder-men take possession the contingency is gone, and the whole remainder becomes vested. Nor is
The record shows that Francois, one of the children named in the deed as then living, died in 1845, and as his interest in the remainder vested at the date of the deed, it goes to his heirs. It also shows that Amanda, second wife of the covenantor, bore him six children, of whom four were living at his death. The interest of these children, not being vested, but contingent upon birth and survivorship, that of the two who died never attached, and consequently did not go to their heirs, hence these four children take by virtue of the covenant the proportion of four to five, or four-ninths of the property. But they take a small interest in addition. Francois, as we have seen, died in 1845, and left as his heirs his father and mother and four brothers and sisters. Thus one-sixth of his interest in the remainder coming to the father, was by him, through his deed to Castello, and his will, conveyed to the children of Amanda; so, in addition to the four-ninths, these four children jointly are entitled to one-sixth of one-fifth of five-ninths, or one fifty-fourth, leaving also for the plaintiff, Mrs. Aubuclion, one fifty-fourth as heir of Francois, and to her four surviving children, jointly, four-ninths in their own right, and four fifty-fourths as heirs of Francois.
The plaintiffs object to this distribution upon various grounds. First, they claim that the estate which vested in the five living children of the covenantor, by his deed, was subject to diminution only by the subsequent birth of children by Cecile Clement, and not by the birth of children from any subsequent marriage. But I can see no warrant, either in reason or authority, for this claim. Our only guide in the matter is the intention of the covenantor, and that seems plain. It is urged that the expressed object “ to
Secondly, it appears that one of the children of Amanda Dan tin, was born after the death of her husband, and plaintiffs also claim that he has no interest in the remainder, as he was not living at the time of his father’s death. In the days when subtleties of statement were suffered to control rights of property and inheritance, it ivas held that a posthumous child, not being in esse, could not take a contingent remainder, unless an intermediate estate was provided upon which it could rest. But the practical sense of modern jurisprudence has so sifted that vast pile of wisdom and rubbish, comprising the common law of tenures, that, justice and reason are no longer the slaves of technical consistency. A child unborn will now not only inherit all manner of estates, but take remainders, whether vested or contingent, as though living when the particular estate determined ; and it matters not whether, in the technical statement of the case, we say that the estate was suspended until his birth, or that it vested en ventre sa mere, or vested in the person next entitled to it, and divested and reinvested at his birth, it is settled by adjudication as well as legislation that the remainder-man shall not be deprived of his estate, although born after the determination of the particular estate.
The plaintiffs claim that this view is only sustained by the statute of 10 and 11, William III, ch. 16, which statute was not
It is seen that Francois, son of Cecile, died early, and the plaintiffs’ counsel object to considering his father as one of his
The only remaining question is that of rents and damages, to the payment of which the infants, it is claimed, are not liable. The amount of damages and monthly rents for which the defendants are liable depends upon the proportion of their estate, and should be divided as follows: the executor should pay out of the estate of Amanda Dantin all that had accrued at her death. Since her death, her heirs defending are supposed to be in possession and should be responsible for the proportion of the plaintiffs’ interest in the possession. This is the principle upon which the judgment for damages was rendered below, although I find the proportion of the plaintiffs’ interest adjudged to them in the lot a little too large.
The judgment is therefore reversed and the cause remanded for judgment according to the principles of this opinion.