Thompson v. Lyon

20 Mo. 155 | Mo. | 1854

Scott, Judge,

delivered the opinion of the court.

This was an action to set aside a deed, and to recover possession of two lots on Collins street, in the city of St. Louis, brought in May, 1851.' The respondents, who are the defendants, claim title to the premises in controversy, under a deed from Wm. P. Foster and his daughter, Virginia Wether ell, who afterwards intermarried with Wm. F. Thompson, one of the plaintiffs.

In July, 1829, Charles Collins and wife conveyed the premises in dispute to Wm. P. Foster, for the consideration of $700, in trust for bis daughter, Virginia Wetherell, who was then a minor, and to no other. This deed was subject to the following proviso, viz : “ That it shall and may he lawful to and for the said Wm. P. Poster, the trustee aforesaid, at anytime hereafter, upon the request of her, the said Virginia W. Wetherell, to release, assign and convey the whole or any part of the premises herein, described to such person or persons as she shall designate or appoint, and to such use or uses as she shall or may think fit or expedient. John W. Wetherell, the husband of Virginia Wetherell, died during the year 1831. On the 7th day of June, 1831, Wm. P. Poster and his daugh-. ter, Virginia Wetherell, who was still a minor, joined in a deed and conveyed the lots in dispute to Russell Hubbard, for $182 53, which lots, by subsequent conveyances, passed to the respondents. In the year 1834, Virginia Wetherell intermarried with Wm. P. Thompson, who, in conjunction with his wife, brings this suit, on the ground of her infancy when she executed the deed to Russell Hubbard.

On these facts, there was a judgment for the defendants.

Nothing is said in relation to the title derived from the execution on Neville’s judgment against John W. Wetherell, because there is no fact found, which shows that the consideration of the deed from Collins and wife to Poster, in trust for Virginia Wetherell, proceeded from her husband.

The defendants seek a support to the conveyance made by Virginia Wetherell during her infancy in the words of the proviso, which empowered the trustee, at any time thereafter, upon her request, to convey the premises. The dicta in some of the books, which maintain that an infant may make án appointment to uses of trust estates, where such authority is conferred by express terms in the deed creating the trust, do not seem to be supported by any decided case. The case of’ Hollingshead v. Hollingshead, in Gilbert’s Equity Reports, where an infant, having covenanted to settle his estate on marriage, according to a power vested in him, but having died before full age, the remainderman was compelled to perform the covenant, has been called an idle one and not law. (Bing. 81.) Sir Edward Sugden bas remarked, in reference to the opinion that an infant might exercise a power not simply collateral, giren by express words during infancy, that it would be a bold decision that an infant may have a power of disposition over an estate through the medium of the statute of uses. Before the statute, it is clear that an infant could not alien a use limited to him, that is, could not direct his trustees to convey the estate to a third person. In that respect, equity followed the law. Now the statute only operates on what were uses at the time it passed. A power not simply collateral is a beneficial right to direct the trustee to convey the estate to whom you shall appoint. This direction an infant cannot give by reason of his nonage. (Sugden on Powers, 216. Macpherson on Infancy, 302. 4 Kent, 324.) A beneficial power, being in the nature ■of property, which an infant cannot by law alienate, it would be strange that an incapacity which the law imposed should be evaded, by means of a power conferred by an individual. A right to bestow on infants property, with an absolute power of disposal, would enable third persons to destroy that control with which the law has wisely entrusted parents over their minor children. Minors would become adults, as there would be no danger of loss in contracting with them.

The statute of limitations is no bar to the plaintiff’s right of recovery. Although the disabilities enumerated in the statute are not cumulative, yet, as "Virginia Wetherell was under age when she executed the conveyance in 1831, her right of action accrued immediately thereon; consequently, she had twenty years from her majority, within which to bring her action, as a provision of the act of limitations of 1835, still in force, expressly declared that actions theretofore accruing should be governed by the statute in force at the time they accrued. The act of 1825 was in force in 1831, and allowed infants twenty years within which to bring their actions after their disabilities were removed.

As this judgment will be reversed and the cause remanded, with leave to amend the answer, we will state that, had it appeared from the facts in the case, that the defendants were purchasers for a valuable consideration, without notice, they would have been protected in their possession against the claim of the plaintiffs. Virginia Wetherell had nothing but an equity in the disputed premises, and if, by her conduct, she has been the means of that equity passing to a purchaser for a valuable consideration without notice, her infancy cannot avail her. We are here dealing with equitable rights. It is an inflexible rule of equity jurisprudence to grant no relief against a purchaser for a valuable consideration without notice. Virginia Weth-erell is seeking equity through the medium of a procedure in the nature of a bill in equity, and she must submit to the rules of equity courts. Could she sue at law, or in other words, was her title a legal one, her claim could not be resisted. Her incapacity to make the conveyance would be fatal to the defendants’ cause. There is a similar incapacity to dispose of her rights in equity; but having disposed of them, and adopting a proceeding in the nature of a bill in equity, she must submit to the rules of a court of equity. The modification of our rules of pleading, and the blending of law and equity, does not destroy the equitable rights of parties.

The same learned lawyer, whose authority has settled the first question which was made in this cause, says that a court of equity acts upon the conscience, and as it is impossible to attach any demand upon the conscience of a man, who has purchased, for a valuable consideration, bona fide and without notice of any claim on the estate, such a man is entitled to the peculiar favor and protection of a court of equity. Precedents are numerous and ancient where the court has refused to give any assistance against a purchaser, either to an heir or to a vendor, or to the fatherless, or to creditors, or even to one purchaser against another. (2 Sug. Ven. 295.) So he says, if a person, having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right, although covert or under age. (Id. 300.) The judgment will be reversed, and tbe cause remanded, with leave to tbe defendants to amend.

Judge Ryland concurring. Judge Gamble not sitting.