86 Mo. 473 | Mo. | 1885
— The Kansas City, Springfield & Memphis railroad company commenced proceedings to condemn for a right of way a strip through a tract of land in Greene county, which had been conveyed to one Blakey in trust for the defendant, Harriet Hooper, to her sole and separate use for her life, with a provision in the deed that if she should die leaving a child or children of her body, in wedlock lawfully begotten, living, at her death, then the said trustee should convey the land to said child or children in fee-simple ; but if she should die leaving no child, then he should convey the land to Spencer Hooper and his heirs. The condemnation proceedings resulted in a-judgment establishing the right of way, and an • award of two hundred and fifty dollars damages to the owners of the land, which was paid into court, and two hundred dollars of that amount have since been paid to Mrs. Hooper. Prior to the condemnation proceedings, Osburn & Company had obtained a judgment against the defendants, Spencer Hooper and his son,. Ludolphus E. Hooper, and under an execution issued thereon had their interest in said land levied upon and sold, and purchased and received the sheriff’s deed therefor, and in this condemnation proceeding Osburn & Company filed their petition, alleging the foregoing facts and asking that the present value of Mrs. Hooper’s life interest in the said two hundred and fifty dollars might be ascertained, and for a judgment in their favor for one third of the amount remaining after deducting her life interest. Mrs. Hooper had three children living at the
The principal' question discussed by counsel in their brief relates to the vendibility of a contingent remainder. But we decline to pass upon that question on the record before ns, because, whether vendible or not, Osburn & Company have no right to the possession of any portion of the money in controversy until the death of Mrs, Hooper, if then. She has a life estate in the entire tract of land, and, consequently, in said money, which represents the strip condemned for a right of way. The entire proceeding was one at law, and the interest Osbnrn & Company asserted was a legal interest. And their equity, if they have any, to have the money so secured that at Mrs. Hooper’s death they may receive their part, was-not set up, even if it could have been, in this proceeding. The judgment of the circuit court was against them. The declarations of law given and refused were upon the questions discussed in the briefs. Whether the instruction given was correct or not, or whether that refused should have been given or not, for the reasons above-stated, we will not determine.
• The judgment was for the right party, and the instructions given and refused were on an immaterial question, so far as the case presented by this record is-concerned.
Judgment affirmed.