Richardson v. Means

22 Mo. 495 | Mo. | 1856

Leonard, Judge,

delivered the opinion of the court.

We can not reverse this judgment, no matter how much we may regret that parties, by a slip in the form of proceeding, should subject themselves to costs and delay in the judicial enforcement of their rights. The instructions given are correct in point of law, and this seems to be-admitted ; but the objection is, that the one given by the court upon its own suggestion, was not warranted by any evidence in the cause, and that,, although correct in the abstract, it had the effect of misleading the jury. If this could be made apparent to us, it might furnish sufficient ground for reversing the judgment in a ease where the reversal would avail the party. Here, however, the plaintiffs have stated themselves out of court, and therefore, if the jury were misled, it resulted in no injury to them ; for the reason that, according to their own showing, they had no case entitling them to a recovery. The plaintiffs’ title is derived from the instrument of gift executed by the father, which vests the legal ownership in the trustee for the use of the wife during her life, and upon her death for the use of her children, and the action is to redress a wrong done to the legal ownership, being substantially an action for the conversion of the plaintiffs’ slaves. Under the old form of proceeding, this suit must have been brought by the trustee at law ; but if, from any cause, the legal ownership could not have been made effectual for the protection of the wife’s equitable right, the courts would, at her suit, upon a proper statement of facts, all the necessary parties being before them, have administered the appropriate equitable relief. But it is supposed that all this is changed by the new code, which is true to some extent. It must be observed, however, that the code has not changed the rights of parties, but only provided new remedies for their enforcement; it has not abolished the distinction between equitable and legal rights, but the distinction between legal and equitable remedies, so far, at least, as to provide that one form of suit shall be used for the enforcement of both classes of rights. The case made upon the record was for legal relief; but the case made by the plaintiffs, in proof, was of a different character.

It was the duty of the trustee to protect the legal ownership from violation, and to preserve the property for the use of the parties beneficially interested as they should respectively become entitled ; and if, as before remarked, there were any obstacles in the way of the legal remedy, or the trustee refused to do his duty, then, upon a proper case stated, and proper parties being made, the courts would, in a civil suit under the code, afford relief according to the principles of equity; and the present judgment can not be pleaded in bar of any equitable relief that shall be thus sought by the wife.

The judgment must be affirmed.