22 Mo. 27 | Mo. | 1855
delivered the opinion of the eourt.
Elizabeth Pensenneau, the plaintiff, claims that a trust results to her in the land in controversy, because it was an inheritance derived from her father ; and her husband, in making a partition with her co-heirs, took a deed for her share in his own name, by which he clothed himself with a trust as to it; and now that he is dead, that she is entitled to have it executed by a conveyance to her of the title in fee simple.
If it were conceded that the law is as assumed by the plaintiff in relation to a resulting trust in her favor, yet a difficulty arises from the fact that the deed in which she joined with her husband in making partition with her co-heirs, was not executed by her in such a way as to pass her interest in the inheri - tance derived from her father, so that she is now in the same situation she would have been had no partition been made. Her
The foregoing observations apply to the lot situated in St. Louis. As to the tract of land lying in the state-of Illinois, the deed of partition was effectual to convey all the estate owned there by the plaintiff. In the partition made in Illinois, the husband of the plaintiff took the conveyance in his own name, and the portion thus acquired he conveyed as part of the consideration for the lot originally assigned to Caya and wife in the partition made of the inheritance situated in St. Louis. Now, if, in making a partition of lands in Illinois, belonging to the wife, as a co-parcener, the deed should he taken in the name of her husband, whether a trust results to the wife is a question to be settled by the laws of that state. If it should be found that the husband in such case would hold as a trustee for his wife, then the question arises whether lands here acquired by an exchange or sale of land in Illinois will be impressed with the trust with which it was clothed in that state. According to the views heretofore entertained by this court, it would seem that lands thus acquired would be held subject to the trust with which the land was clothed, for which they are exchanged or sold. (Depas v. Mays and wife, 11 Mo. 317.) The question arising under the partition made in Illinois, by reason of the husband taking the deed in his own name, has not been discussed in reference to tho laws of that state, and we are unwilling to hazard an opinion in reference to it, especially as it is not necessary in the aspect which the case now assumes.
We are embarrassed in relation to that part of the petition
The alternative relief here sought is founded on the assumption that the cause of aetionis wholly misconceived, and is entirely inconsistent with and-foreign to the case as stated in the-petition. Moreover, the necessary parties were not before the-court in order to-make a partition of the premises. .
The difficulty in this case grows out of the omission or unwillingness of the plaintiff' to determine on what grounds she ■ will stand. She must either abide by. the partition or disclaim it. If she insists that there was a binding partition, let her-make a deed; confirming it, the only effectual mode by which it-can be done; Then she will be in a position to claim an enforcement of the trust, if there is any. If she is unwilling to-do this, then let her declare the nullity of the deed, of partition, growing, out of the imperfect mode of executing it:.. Failing to-do one or the other of these-things, she will not be permitted to-litigate-her rights, without' determining what they are, before-she institutes her suit. The judgment is reversed, and the bill, dismissed without prejudice.