3 Mo. 40 | Mo. | 1831
delivered the opinion of the Court.
This was an action of ejectment 'brought by Fryer v. Dougal, to recover a lot of ground in the city of St. Louis. The case was submitted to the Court below, and the facts found after the manner of a special verdict, and upon the finding, judgment was rendered for Fryer, to reverse which, Dougal now prosecutes his writ of error in this Court.
For the plaintiff in error, it is insisted, first, that Fryer is estopped by the deed from Apoline to Collins ; as privy in estate and contract, with full notice of the prior sale, as is evidenced by his own deed, &c.
Second. That the deed to Frjraris fraudulent and void, both by statute and at common law.
Third. That the deed to Collins is good and effectual to convey all the interest the vendor had at the time, notwithstanding the cbndition in the deed from Braseau.
Fourth. That if the deed to Collins be inoperative, sd also is the deed to Fryer, for the same condition which limits the right to sell to twenty-five years, also limits it forever unless done unanimously and with one consent.
Fifth. The deed to Fryer is void, for that the $600 were not paid as stipulated, and the deed was to be void unless they were so paid, &c.
Sixth, It was also urged that the condition or limitation in the deed from Braseau was repugnant and void for that reason. If this last position were true, the cause could be readily disposed of; but we cannot view it in that light. The limitation is not upon the estate, but upon the power to sell, &c., and may well accord with the maxim, that he who has power to give, has power to prescribe the terras of the gift, and onjns est dare ejus est disponen. It is not repugnant to the full property conveyed in the deed from Braseau, that the power of full enjoyment or alienation is withheld for a precise or limited period, (i. e.) until the age of majority under the Spanish law'. The condition was not only not illegal, hut in strict accordance with the law then in force. It is not believed, however, that any provision in the Spanish law, in force at that period, would have prevented Braseau from extending the limitation beyond the age of majority. The principles of the common law assuredly would not have prevented him from doing so. The limitation or personal restraint on the power to sell, &c., imposed by Braseau being valid, let us consider the Other points as they have been raised.
First. Then is Fryer or Apoline estopped by the deed to Collins? We think not. If so, that would be done indirectly, which could not have been done directly. To pass an estate by estoppel, the party must have had power to pass it by a direct conveyance ; which in this case Apoline had not.
Second. Is the deed to Fryer fraudulent and void ? This must depend upon the validity of the deed from Apoline to Collins. Under the view we have taken of the matter; Apoline had no power to sell to Collins, and might well avoid her deed in that behalf, and we would liken if to a conveyance made at this day by a minor under our law, who on arriving at the age of majority should sell to a person who had full knowledge of the previous conveyance.
As to the third point in addition to what has been before said, the change in the law making 21 instead of 25 years the age of majority, cannot change or affect the limitation. If it were legal at the time it was imposed, however arbitrary and unreasonable it might seem, it would still he good for the term prescribed.
Fourth. The fourth point raised has no force in it. The terms of the deed from Braseau show plainly that in case any of the grantees should die without issue before the expiration of the period limited, the part or portion of those dying should belong to the survivor, and Apoline is shown to have been at the date of her- deed.t®
Fifth. It is sufficient that the only party who could take advantage of the condition, accepted the money tendered on a different day, and thereby waived that advantage.
Upon the whole- matter, therefore, the judgment of the Circuit Court is affirmed, with costs.