32 Mo. 176 | Mo. | 1862
delivered the opinion of the court.
This was an action of ejectment for the possession of certain leasehold premises in the city of St. Louis, held for a term less than twenty years. The plaintiff claimed under an assignment of the lease from Anthony Tiernan, as follows :
“ State of Missouri, County of St. Louis, ss.
“ Be it remembered, that, on this 22d day of January, 1853, I, Anthony Tiernan, do hereby transfer the foregoing lease, with all its advantages, tegether with all its liabilities, to Ber*184 nard Slevin, as trustee for Catharine Tiernan,' and for her use and benefit during the term of said lease, for and in consideration of the sum of nine hundred dollars, to me in hand paid by said Catharine Tiernan, receipt of which is hereby acknowledged.
“ In witness whereof, &c.
“Anthony Tiernan, [l. s.]”
Catharine Tiernan was the wife of Anthony Tiernan, and had died before this suit was brought. Some evidence was given tending to show that the assignment of the lease was made in fraud of creditors of Anthony Tiernan, and there was also given in evidence the record of a former action of ejectment of the present defendant, John Brown, against Anthony Tiernan, in and by which Brown recovered and received the possession of the-same premises, which suit was commenced in September, 1857. The court gave the following instructions :
“ 1. If the plaintiff in this case claims under Anthony Tier-nan, and if the action brought by the defendant, John Brown, against Anthony Tiernan and others (the record of which is in evidence in this case) was brought for the recovery of the premises in question in this suit; and if the said Anthony Tiernan, or those claiming under him, set up as a defence in that action the identical claim of title on which the plaintiff now seeks to recover, then the judgment in that case in favor of Brown is a bar to this action.
“ 2. Whatever might have been the effect of the assignment made by Anthony, Tiernan to Bernard Slevin of the lease in question while Catharine Tiernan was alive, she being dead, the said Slevin has now no such interest as will enable him to recover the possession of said premises in this action.”
Verdict was given for defendant.
We think both of the instructions given were erroneous.
As to the first instruction. The act for the recovery of the possession of lands of 1855, (vol. 1, R. C., p. 695,) in section 33, provides that a “judgment, except of non-suit, in an ac
As to the second instruction. The assignment by Tiernan to Slevin is not affected by the statute of uses, because it concerns a chattel only. It is not fraudulent per se. It may be fraudulent, but the fraud must be shown by extrinsic testimony, and is a question of fact. The assignment vested the legal estate in Slevin, and we are unable to see how that is affected by the death of Mrs. Tiernan. Her administrator may have the beneficial interest in the property, but the legal estate remains in Slevin until some act is done to divest it.
Judgment reversed and cause remanded.
