18 Mo. 486 | Mo. | 1853
delivered the opinion of the court.
The principal question in this case is, whether the title acquired by Robert T. Brown, in the large tract of land described in the petition, after the deed made by him and his wife to Charles C. Yalle, enured to the benefit of Yalle. Another question is also made upon the effect of certain acts of the parties, which it is alleged operate as an estoppel in pais, binding upon Brown and upon Olemens as a privy in estate.
The deed' from Brown and wife to Yalle is dated April 4, 1831, and by it, they bargain, sell and quit claim, to Valle and his heirs “ all their, and each of their right, title, interest, estate, claim and demand, both at law and in equity, as well in possession as in expectancy, of, in and to seven hundred ar-pens of land, being part of an undivided Spanish grant, lying on the Saline creek, and known as the Grand Glaise tract.” At the date of this conveyance, Mrs. Brown, the wife of R. T. Brown, owned an undivided interest in the tract of two undivided sevenths, much exceeding the quantity of seven hundred arpens conveyed to Yalle; but Robert T. Brown himself had not then acquired title to any portion of the tract. The deed of Brown and wife to Valle was not so acknowledged as to operate upon any interest which was in Mrs. Brown. Brown afterwards, on the 5th November, 1836, acquired an interest in the tract of one seventh, or something more than one thousand arpens, by conveyance from Nancy Bullitt. The plaintiffs, representatives of Charles C. Yalle, claimed that the title thus acquired by Brown enured to the benefit of their father.
After Brown and wife had made their conveyance to Yalle, a deed of partition was made among the several owners of the tract, Valle himself not being a party to the deed, and by it a portion, called in the record lot No. 6, was set apart to Brown and his wife for their three shares in the tract. They had be
Evidence was given for the purpose of showing that when the survey was made and the tract subdivided, preparatory to the partition, Brown recognized Charles C. Valle as entitled to an interest in the land, and agreed that the portion to which he was entitled should be included in the portion set apart for Brown and wife. There was also evidence given of a survey made after the partition, for C. C. Valle, at which Brown was present, by which the land claimed under the deed of Brown and wife was surveyed together with the one hundred’and eight arpens claimed by Valle as the residue of his share in the original tract.
Clemens purchased the interest of R. T. Brown in the tract set apart for the shares of Brown and his wife. The purchase was
1. The deed from Brown and wife to Valle contains no covenants for title to the property conveyed. It carefully avoids the use of the words which, under our statute, contain certain covenants for title. It was, then, nothing but a deed of release or quit claim of the title then in Brown and wife. It did not operate, as most probably it was intended, upon the title in Mrs. Brown, for it was not properly acknowledged for that purpose.- If the title subsequently acquired by Brown did not enure to Yalle, then, after Brown’s death, Yalle and his heirs had no title to the seven hundred arpens.
The deed to Yalle being a mere quit claim, without warranty, the title subsequently acquired by Brown would not at common law enure to the benefit of Yalle, either to transmit the subsequently acquired title, or by way of estoppel to prevent circuity of action. In Coke Litt. 265, a and b, it is laid down that no right passeth by the release but the right which the releasor hath at the time of the release made; as if the son release to the disseisor of his father all the right which he hath, or may have, without clause of warranty, after the death of his father, the son may enter against his own release, because he hath no right at all at the time of the release made, the right
But again, the language of the granting part of the deed operates only on the right, title, interest, estate, claim and demand of Brown and his wife, or either of them, at law or in equity, as well in possession as in expectancy. Unless the words “in expectancy” can extend the grant to a title subsequently acquired by purchase, it is clear that the other words would confine the operation of the deed, by their own description of the title conveyed, to the title then in Brown and his wife. Brown v. Jackson, 3 Wheat. 449. The words “in expectancy” do not comprehend a title to be thereafter purchased. An estate in expectancy is an estate, the possession of which, a person is entitled to have in futuro, or, as is said in Cruise’s Dig. tit. 16, chap. 1, sec. 1, it is an estate where the right to the pernancy of the profits is postponed to some future period. The right here conveyed, described by the words “in expectancy,” must be some right that the grantors are to have the fruits and enjoyment of, by reason of their present relations to the title of the land. A future acquisition, by purchase, is not included. The deed, then, by its own terms, operates only so far as the grantors had right at the time.
It is insisted that the sixth section of the act of 1825, regulating conveyances, operates to vest the title acquired by Brown in Yalle. It is not necessary here to say, whether the views of that act, as expressed in Bogy v. Shoab, 13 Mo. Rep. 375, are concurred in. That case certainly gives to the language of the section a very extended operation, when it allows it to embrace any case of the conveyance of title without warranty, where the grantor at the time had no title, but
2. On the question, whether Brown, and Clemens claiming
The judgment of the Circuit Court is, with the concurrence of the other judges, affirmed.