Eneberg v. Carter, 98 Mo. 647

Eneberg v. Carter

98 Mo. 647 | Mo. | 1889

Sherwood, J.

— The clauses of the will which form the basis of the present contention read this way :

“ 7. After all the devises and bequests, above provided for, have been satisfied, I desire the remainder of my estate to be equally divided between my children, Mary D. Carter, Marion Alexander, Annie R. Carter, Elizabeth C. Webb and John L. Carter.

“9. I hereby appoint Jesse P. Alexander, of Jackson county, executor of my estate. I desire that my executor will dispose of all of my real estate as soon as it can be done without loss to my estate.”

The testator died in 1875; On the second day of March, 1882, a judgment in favor of the Kansas City Lumber Company was rendered against J ohn L. Carter for five hundred and odd dollars, on which judgment execution was issued to the sheriff on the twenty-seventh day of February, 1883, and his levy of the execution resulted, on the seventh day of April, 1883, *650in a sale of Carter’s right, title and interest in certain lots in the City of Kansas, plaintiff being the purchaser, and, receiving a sheriff’s deed on the date last mentioned, placed the same on record. Carter, on the fifth day of January, 1883, .conveyed, or attempted to convey, his interest, being an undivided one-fifth in the land in controversy, to said Alexander. The petition charges that this conveyance, as well as other mesne conveyances, made and participated in by the defendants, were fraudulently made, with a view to-evade the collection of the judgment aforesaid; that there was no consideration for any of said conveyances, and asks that so far as concerns Carter’s undivided one-fifth interest in the land, said conveyances be set aside and for naught held. Upon hearing the testimony, the court granted the prayer of the petition and decreed accordingly; hence this appeal.

As seen from the premises, the heart of this cause is involved in the question : Had Carter, the devisee, such an interest in the land that the lien of the judgment could operate thereon 1 Under our statutory provisions, all interests of a debtor in land, whether legal' or equitable, are bound by the lien of a judgment rendered in the same county, and consequently are subject to sale under an execution issuing upon such judgment. R. S. -1879, -secs. 2730, 2731, 2767, 2354; Slattery v. Jones, 96 Mo. 216. So that it may be safely affirmed it is a general rule, a rule almost without exception, that the interests of a defendant debtor in land are never beyond the reach of an execution.

Taking this as the predicate for investigation, the inquiry arises : Do the circumstances, already detailed, exempt the case of the defendant Carter from the operation of the general rule ? The claim is made by counsel for the defendants that the clause of the will operated as an equitable conversion of the land covered by it, and that such conversion was of even date with that of the death of the testator

*651I. If this be true, then the rendition of the judgment created no lien and the plaintiff took nothing by the sheriff’s sale and its accompanying incidents. Freeman on Executions [ 2 Ed.] sec. 183, and cases cited. Taking it for granted that the words employed by the testator in the ninth clause of his will were of such a nature as to authorize the land to be converted into money and the money thus raised to be distributed among the five residuary legatees or devisees (as to which concession, see 3 Pomeroy’s Eq. Jur., secs. 1159-, 1160, and cas. cit.), and conceding further, that, if a conversion of the land into money took place, it occurred upon the death of the testator (3 Pomeroy, section 1162 and cases cited Fletcher v. Ashburner, 1 White & Tudor’s Lead. Eq. Cas. [4 Am. Ed.] 1159, and cases cited); and, conceding that the powers, conferred by the ninth clause of the will upon Alexander, was something more than a mere naked power, was a trust of such a character that it would be recognized and enforced by a court of equity ; conceding all these things, I say, the question still recurs : Did the clause of the will in controversy operate by its own force and without action on the part of the executor, to convert the land into money, and thus, place it beyond the lien of the judgment and the execution issued to enforce it % I am not of the opinion it did,, and for these reasons : “ It is a well-known maxim, that an heir at law can only be disinherited by express devise or necessary implication, and that implication is: defined to be such a strong probability that an intention to the contrary cannot be supposed.” 2 Powell,, on Devises, 199. And his title cannot be defeated unless there was a disposion of the subject to some other person capable of taking. 1 Fonb. Eq. 51 ; Habergham v. Vincent, 2 Ves. 224; Pickering v. Lord Stamford, 3 Ves. 493.

In the present case, there was certainly no express devise in fee to the executor, nor are there any such *652words in the will as to raise a fee in him by force of a strong implication. Therefore, the fee remained in the heirs at law, both by the devise to them, as well as by the statute of descents, until it should be divested by a sale by the executor under the terms of the will; and until such sale no conversion could occur. Greenough v. Welles, 10 Cush. 571 ; Co. Litt. 236a; Warneford v. Thompson, 3 Ves. 513; Hilton v. Kenworthy, 3 East 553 ; Schauber v. Jackson, 2 Wend. 13; Lancaster v. Thornton, 2 Burr. 1028; Bowman v. Matthews, Forrest Exch. 163; 1 Powell on Devises, 233 ; Beadle v. Beadle, 2 McCrary, 586; Compton v. McMahan, 19 Mo. App. 494; Crittenden v. Fairchild, 41 N. Y. 289 ; 1 Pomeroy’s Eq. Jur., sec. 371.

I have been able to find no case where the doctrine of equitable conversion has been so applied as to cut out and dominate the title of the heir except where the donee of the power took a fee by necessary and inevitable implication, or where such fee was in express terms conferred upon such donee ; otherwise the title remains vested in. the heirs until the donee of the power actually ■exercises it.

From the foregoing it follows that the judgment lien and execution had something upon which to operate; that plaintiff took a title, that the present proceeding was the proper one in which to assert that title, and, therefore, judgment affirmed.

All concur, except Ray, C. J., absent, and Barclay, J., not sitting.