Barlow v. Delaney, 86 Mo. 583

Barlow v. Delaney

86 Mo. 583 | Mo. | 1885

Henry, C. J.

— Plaintiff filed his petition in the circuit court of St. Louis, alleging as his cause of action, substantially the following facts : In April, 1867, Mrs. Octavia Boyce, a married woman, to whose sole and separate. use two trustees held the legal title to the lots of land described in the petition, made an exchange of said lots with plaintiff, and she and one of her said trustees joined in a deed, conveying to plaintiff said lots, in fee-simple, with coyenants of general and special warranty, and, at the same time, he, by deed, conveyed to her and her trustees, several lots of real estate, situate in the city of St. Louis, to be by them held as her separate estate. That it has recently come to plaintiff’s knowledge that Mrs. Boyce had only a life estate in the lots she conveyed to plaintiff. That by the last will of her sister, Mrs. Ann Biddle, they were devised to her for life, with remainder in fee to her children. That Mrs. Boyce" has since died, and her children assert their title to said lots conveyed by their mother to him, and that said children are in the peaceable possession of the lots of land conveyed by him to their mother, and of other lands inherited by them from her, of the value of $300,000. That the lots conveyed to plaintiff by Mrs. Boyce are of the value of $7,000, and the prayer of the petition is that the title to the lots conveyed by Mrs. Boyce to plaintiff, be vested in the plaintiff. The court sustained a de-' murrer to the petition, and on appeal to the St. Louis court of appeals, that judgment was affirmed, and plaintiff has appealed to this court.

A question elaborately discussed in the brief of appellant’s counsel and in the opinion delivered by the court of appeals, is whether Mrs. Boyce and one of her trustees could make a valid conveyance. But whether she could, or not, a more important question, and one *587equally decisive of the case, is whether, conceding that she had a right to convey, and that her covenants in her deed are obligatory upon her, they estop her children from asserting their title to the lots in controversy. The action is not one to remove a cloud from a good title,.but to take the fee-simple title out of defendants, and vest it in plaintiff. The title in fee-simple is admitted to be in the heirs, and the object of this suit is to set up an estoppel against them in equity based upon the covenants in the deed of Mrs. Boyce. These defendants, her children, do not derive their title from their mother, either by descent or by purchase. They claim under the will1 of Mrs. Biddle, and, if the covenants in Mrs. Boyce’s deed are at all obligatory upon her children, they are answerable to the extent of the lands descended from her, or devised by her to them.

By section 7, General Statutes, page 443, revision of 1865, ‘ ‘ lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who shall have made any covenant or agreement (shall be answerable upon such covenant or agreement), to the extent of the lands descended or devised to' them in the cases and in the manner provided by law.” Suppose that Mrs. Boyce had had no property at her death, not even that received by her from plaintiff in exchange for the lots in controversy, would it be contended that, by the covenants in her deed to plaintiff, her children would be estopped, either in law or in equity, from asserting their title ? If she had but a life estate, that-was all she could dispose of, and her covenants of warranty cannot have the magical effect of investing her grantee with an estate she did not have.

It is urged that it would be inequitable to permit de-' fendants to hold the lots of land conveyed by plaintiff, and, also, recover the lots in controversy; but if they should recover these lots and the covenants in Mrs. Boyce’s deed are binding upon her children, then, to the *588extent of the estate they inherited from her, plaintiff •will have his action on the covenants. If they were of no binding force, either upon her or her heirs, plaintiff certainly has no legal demand against them which can be enforced against these lots. He may have an equitable right to have the lots conveyed by him charged with a lien for the unpaid purchase price, which would be the value of the lots conveyed by Mrs. Boyce at the time of that conveyance, but in no event has he the right to have their title in the lots in question vested in him.

The judgment of the court of appeals is affirmed.