Thompson v. Lyon

33 Mo. 219 | Mo. | 1862

Bay, Judge,

delivered the opinion of the court.

This cause has been in this court before, and will be found reported in 20 Mo. 155.

It was then held that an infant could not execute a power of appointment coupled with an interest, but if it appeared from the facts of the case that the defendants were purchasers for a valuable consideration without notice, they would be protected in their possession against the claim of the plaintiffs. That if Virginia Wetherell, who had nothing but an eqirity in the disputed premises, by her conduct was the means of passing that equity to a purchaser for a valuable consideration, without notice, she would not be permitted to avail herself of her infancy. The judgment was reversed and the cause remanded, with leave to amend the answer.

The complainants then amended their bill, omitting the prayer to set aside the deed from Foster and Virginia Wetherell, and leaving the bill with a simple prayer for a judgment for possession, with damages.

The defendants, in their answer to the amended petition, assert that they were purchasers for a valuable consideration, and without any knowledge or notice of any disability on the part of said Virginia Wetherell, or that she had asserted any pretence of title to said promises, and deny that Hubbard or any other subsequent purchaser had any notice or knowledge of any such disability. The court found for the defendants, and made a special finding of the facts, as required by the code of 1849, under which the suit was brought, together with the conclusions of law upon the facts. Exception was taken to the decision of the court, and a motion for review filed, which was overruled. The propriety of the action of the court in overruling the motion for a review, so far as it applied to the evidence, cannot now be considered by us, inasmuch as no case was made containing the evidence as required by the code, nor does the record show all the evidence given upon the trial.

Upon the facts as found by the court, the court declared and decided as matter of law that the plaintiffs were not entitled to recover possession of the premises nor damages for the detention thereof, nor for the rents and profits thereof, and that judgment ought to be given for the defendants, the court being of opinion and deciding that said deed from Foster and Virginia Wetherell was effectual to pass the legal estate in the premises to Russell Hubbard, notwithstanding the said Virginia was a minor at the time of the execution of the deed, and that the legal estate is now vested in the defendants, and that the plaintiffs cannot recover the possession from the defendants as long as the legal estate is outstanding against them. The court made no finding with reference to notice, not considering it material under the pleadings as amended.

As before stated, the amended bill contains no prayer to set aside or declare invalid the deed from Foster and Virginia to Hubbard, but simply prays for possession of the premises, and in that respect partakes of the character of an action of ejectment; no other relief was asked. As stated by this court when the cause was here before, Virginia Wetherell had nothing but an equity in the disputed premises, and as the bill does not ask the enforcement of any equitable right, and as the legal title is outstanding, we do not perceive upon what ground she can maintain an action to obtain possession of the premises. As the cause was presented to the court below, the finding could not have been otherwise.

Judge Dryden concurring,

the judgment will be affirmed;

Judge Bates not sitting.