69 Mo. 520 | Mo. | 1879
Lead Opinion
This case depends upon the construction of three deeds: One, made in 1856, “ to Mrs. Eanny A. D. Mathews, and all her children she has now or ever will have,” with this additional clause : “ But it is distinctly understood if the said Eanny A. D. Mathews may hereafter conclude to sell said land, she is hereby authorized to do so by assigning it, so that the proceeds of said land is to be laid out for other land or property, to be secured to her and her children.” The second deed, made also in 1856, grants, bargains and sells to said Eanny A. D. Mathews, “ and all her children she now has or ever will have,” a tract of land in Jackson county, to have and to hold unto the said Eanny A. D. Mathews, and her children aforesaid, and their heirs; but it is distinctly understood if the said Eanny A. D. Mathews may hereafter conclude to sell thé above described tract of land, she is hereby empowered and authorized to do so, by arranging it so that the proceeds of said land are to be laid out for other land or property, to be conveyed so as to put the right and title in the said Eanny and her children.” The third deed, made in 1857, contains the same terms of conveyance and power of sale as the second.
In 1866 Mr. James P. Mathews, and his wife, Eanny, executed a mortgage of these lands in Jackson county, conveyed to his wife, as above stated, and also of a part of another tract in which Mrs. Mathews had an unquestioned and -unconditional title, to Joseph Kinney, father of the plaintiff, to secure a loan of $7,280, made by Kinney to enable Mrs. Mathews to pay off' the purchase money of a tract of land in St. Louis county, conveyed to a trustee for her use. This mortgage referred to the deeds made ten years before, as containing her power to make this disposition of the Jackson county lands. There was a sale
The title to an undivided half of one of the tracts so mortgaged, was conceded to have been in Fanny A. D. ■Mathews at the date of the mortgage, and plaintiff’ had a judgment for this interest, but as to the other half of this tract, and the other tracts conveyed in the deeds containing the power of sale above recited, the judgment was for the defendants, upon the ground that the deeds conveying them did not authorize the mortgage to Kinney, and, therefore, that the plaintiff did not acquire any title by his purchase on their foreclosure. That the judgment was based on this ground, appears from the instruction which the court gave, which was, in substance, that the deeds from Cogswell and wife, and Quesenbury and wife to Fanny A. D. Mathews, the language of which has been recited above, did not authorize or empower her and her husband to create a lien upon the lands thereby conveyed, .and, therefore, said mortgage deed was void, and the sale under it conveyed no title, and that, so far as said lands were concerned, the judgment must be for defendant.
In reviewing this judgment the first question is, .whether the power of sale, contained in the deeds to Mrs. Mathews, authorized the mortgage given, and> upon this question, all the judges are agreecp Whatever may be the weight of authority upon the question whether a general and unrestricted power to sell includes a. power to mortgage, it is clear that the mortgage in this case was not authorized by the power. The power to sell was not a general one, but was restricted to a sale in which the proceeds should be invested in other lands or property to be settled for the uses specified in the original conveyance. The lauds could only
But it is not clear that, though this deed was not a compliance with the power, which it purported to be, it was not stiH effectual to convey such title as the said Fanny A. D. Mathews had. Indeed, the court seems to have so held, in allowing it to pass the title of Mrs. Mathews, which was undisputed. In Campbell v. Johnson, 65 Mo. 440, in which the case of Owen v. Switzer, 51 Mo. 322, was overruled, it was held that “when a person acts for a valuable consideration, he is understood in equity to engage with the person with whom he is dealing to make the instrument as effectual as he has power to make it.” That case, in its facts, was the converse of this, but the principle established in it is equally applicable to this. That was a case in which Mrs. Campbell, having only a life estate, with a power to convey in fee, undertook to convey the entire estate, but never referred to the power, and this court held that, as she had the power to do what she intended to do, her conveyance should be held valid for this purpose, although in her deed
This renders it necessary to determine what interest Mrs. Mathews had, and upon this point it must be conceded that there is room for doubt. At the date of the conveyance to her, she had three children; at the date of the mortgage, in 1866, she had had seven, though two of them were dead. The question is, what interest she had at the date of the conveyance to her, and her children then born, and those afterwards to be born. A tenancy in common, could certainly not be claimed, except we reject the clause in the deeds which expressly includes futuré-born children. They were not in esse, and could not take in fee simple. In Jeffery v. De Vitre, 24 Beav. 296, there was a devise to Louisa Jessie, wife of James Remington, “ for the benefit of herself and such children as she then had or might thereafter have by her then husband,” and the question before the Master of the Rolls was, whether this devise was not a joint tenancy in her four children and herself, upon which the Master of the Rolls said, “ that the natural construction was to let. in the after-born children, which can only be accomplished by giving a life interest to the mother, with the remainder to her children by James Remington.” This is exactly the present case, except that the one quoted was a ease of a will, and the case we have before us was of a deed; but there is nothing to distinguish the principle decided from that involved in the present. In Armstrong v. Armstrong, 7 Eq. Cas. 518, the will gave all the estate to the wife of the testator, for the benefit of herself and children, and it
In the ease we have before us there were children in existence at the time of the deed, but the deed expressly included after-born children. It is clear that no tenancy in common was created, because the after-born children could not take as tenants in common under such a conveyance, and the after-born children were expressly provided for in the conveyance we have referred to. It must have been, therefore, an estate tail,'or a title to the wife for life, with remainder to her children. I see no objection to
In the case we have for consideration there is no necessity for resorting to implications, as the deed expressly provides for after-born children, and as they could not take a tenancy in common with the mother, not being in being at the time, there is no room for construing the deed otherwise than an estate tail, or a creation of a life estate in the mother with remainder to the children. There were no words used in the conveyance to make it an estate tail, since our statute only provides for the omission of the
Eeversed.
Dissenting Opinion
Dissenting. — I do not concur in the opinion of the majority of my associates. The only estate which would have passed by the deed to Mrs. Mathews and her children, at common law, was an estate for life, whether to her solely or to her and her children, I express no opinion. The word “heirs” was essential to create an estate of inheritance in a common law conveyance. No equivalent term would answer.
The second section of our act in relation to uses and trusts, (2 Wag. Stat., 1351,) provides that “the term heirs or other words of inheritance, shall not be necessary to create or convey an estate in fee simple.” But that section does not dispense with the use of the term “heirs” in a conveyance intended to create an estate-tail. If it had, the conveyance in question would have created a fee-tail estate, and in that event Mrs. Mathews, under the fourth section of the act, would have taken an estate for life, and the remainder would have passed in fee simple absolute to her eldest child. The statute abolishes fee-tail estates, only by limiting the estate of the first taker to an estate for life, and creating a remainder in fee simple absolute in the person to whom the estate-tail would, on the death of the first
The cases cited, arising under wills, are not applicable. A different rule in this respect has always been recognized as applicable to devises. The word “heirs” is not necessary in a devise to create an estate of inheritance. Equivalent words will answer. Effect is given to the manifest intent of the testator, and the arbitrary rules governing common law conveyances never obtained in the construction of wills. I am satisfied that Mrs. Mathews had a fee simple estate in the land, whether solely or in common, or jointly with her children, I have not thought it necessai’y to inquire, since the majority of the court has decided that she had but a life estate. I cannot see that any greater violence is done to the grantor’s intention by a construction which gives Mrs. Mathews a fee simple estate, with no vested estate in the children, than by a construction which limits hers to an estate for life, and gives the children a vested fee simple in remainder. It is evident from the