98 Mo. 647 | Mo. | 1889
— 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,
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
In the present case, there was certainly no express devise in fee to the executor, nor are there any such
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.