Clamorgan v. Lane

• Decision Date: 31 October 1845
• Parties: CLAMORGAN ET AL. v. LANE.
• Court: Missouri Supreme Court

9 Mo. 446

CLAMORGAN ET AL.

v.LANE.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS CIRCUIT COURT.

SPALDING & GAMBLE, for Plaintiffs.

1st. The limitation in the conveyance of Clamorgan to Brazeau and Brazeau to the children, did not restrain the children of Clamorgan from making partition before they were twenty-five years of age. The words of the limitation are, that they should not be able to use the same by selling, pledging, or mortgaging it, before the youngest should attain the age of twenty-five years.

2nd. The will of Cyprian Martial Clamorgan, was made after he was twenty-one years old, and operated to pass the title to the lands described therein, although made before he was twenty-five years old, the said conveyance of Brazeau, not prohibiting such a disposition of his interest. 3rd. But even if the will of said Cyprian did not operate because he was under twenty-five years of age, yet its provision in favor of Henry, having been recognized and ratified by Apauline, the survivor of the three grantees of Brazeau, after she was twenty-five years of age, became thus effectual, and passed to him the title of such portions of the land as Cyprian had devised to him. In other language, the heirs of Apauline are estopped by her recognition and ratification of Cyprian's will in favor of Henry as fully as if the provisions therein had been incorporated in her own. Sheppard's Touchstone, 413 (29 Law Lib 259) If a wife bequeath her goods, and after her death the husband connive at it, or deliver the goods, it makes the will good. 29 Law Lib. 433; app. No. 2. A will though revoked or canceled, may be revived by republication, and such republication may be by means of another testamentary instrument, or by terms of reference embodying the will. 6 Vesey, 564, Stuart v. Prujean. That a testamentary deposit of real estate by a paper unattested, but sufficiently referred to, in a will attested by a proper number of witnesses. See close of Romilly's argument and the opinion of the Chancellor. 23 Law Lib. 198 (Lovelass on Wills 371), as to the republication of Wills Greenleaf's Evidence, 25, as to estoppel also, page 33, as to admissions that have been acted on, or have been made to influence the conduct of others, which are in nature of estoppels. 3. Johns. Cases, 174, a recital in a will that an estate had been conveyed away, estops the heir.

4th. The first deed of Louis Clamorgan to McConnel having been made the day after he became twenty-one years of age, revoked the deed he had made in August of the preceding year to Lane, when he was a minor, and vested in McConnel the title of the land in question; both deeds being for the same lands. As to the revocation see the following: 14 Johns. R. 124; that a conveyance of land by a person after he is of full age, is an avoidance of the deed of the same made by him while a minor; 15 Mass. R. 220. Bingham on Infancy, pp. 60-2-3, that a feoffment being a conveyance performed with much greater solemnity than any other, the infant must avoid it by entry; but other conveyances can be avoided without entry. 10 Peters' R. 59, Tucker et al. v. Moreland. Decision to same effect as in 14 Johns. 124, and that a confirmation of a deed of an infant after he arrives to full age, must be by some act of ratification. 11 Johns. R. 542, 11 Serg. & Rawle, 311, as to Confirmations. 5th. The taking the deed from the recorder's office did not divest the title of the lot, and cause it to pass from McConnel back to Louis Clamorgan. 2. H. Blacks. 263-4. Canceling a deed does not divest the estate. 2 Johns R. 84. The canceling of a deed, with the intent of revesting thereby the title in the grantor, does not produce that effect, and does not destroy the title. 7 Mo R. 337, Moss v. Anderson, that lands can be conveyed by deed only in this State. 4 Wendell, 474. The return or destruction of a deed, cannot revest the grantor with the title. “A title can be transferred only by deed.” 4 Wendell, 585. Redelivery of a deed to the grantor does not revest the title in him. 8 Cowen's R. 71. To the same purport, and the doctrine is discussed, and authorities are reviewed; cites 1 Salk. 120; 1 Term R. 151; Cro. Jmes, 399; Coke's Littleton, 225, note 1366. 1 Johns. Ch. R. 240. If a deed is duly executed, in the first instance, so as to take effect, any subsequent delivery is ull and void; the subsequent custody of it by the grantor, will not destroy the effect of the delivery. 9 Mass. R. 307. Hatch et al. v. Hatch et al. 311-12, the court say “the cnceling of a deed will not divest property, which has once vested, by a transmutation of possession.” “A man's title to his estate is not destroyed by the destruction of his deed.” The recorder acted illegally in giving up the first deed of McConnel. Rev. Code, 123, § 31. This deed was notice to Lane by law, and the proof shows actual notice by his agent. 9 Johns. R. 163; 2 Mass. R. 508; 4 Mass. R. 638; 7 Mass. R. 487; 6 Wendell, 223.

6th. The second deed to McConnel, gave him a title, even if the first did not, having been executed by Louis Clamorgan, and acknowledged and delivered on the 26th July, the day before the second deed to Lane was made, and recorded on the same day that Lane's second deed was recorded, but afterwards. The second deed to McConnel was a mere repetition of the first. It was only another evidence of the same sale, and was, as it were, a continuation of the first deed. It was substituted in its stead, having been filed before the other was withdrawn; so that from the time of first filing of the first deed to McConnel, there had never been a moment when there was not of record, a deed to him evidencing the sale. The second deed was not a second sale, or evidence of another bargain. In reason and for all practical purposes, it was the same deed as the first. Suppose the two had been exact duplicates, and McConnel had filed one, and then wishing to examine it at home, had withdrawn it, filing the other to remain there as its representative in its stead, and then returned and again filed the first one. My position is, the first deed to McConnel having been filed for record, Lane, by law had notice of the sale to McConnel, and in fact by his agent had actual notice thereof, so that his is to be postponed, to that of McConnel. As to the matter of estoppel, see Greenleaf's Ev. pp. 33, 24, § 207; p. 244, § 210; and p. 246, § 212. The deed to Lane was not confirmed by the parol declarations of Louis Clamorgan. 11 Johns. 542, 11 Serg. & Rawle, 311; 10 Peters, 59; and Bingham on Infancy, 65. Fraud cannot deprive Louis from revoking the deed to Lane. 1 Johns. Cases, 127; and 10 Peters' R. 59.

THOMAS T. GANTT, for Defendant. Hardage Lane, by his counsel, submits that the following propositions are maintainable upon the aforegoing statement, and the record in this cause, to-wit: 1st. That all the interest in the lot and premises in controversy, conveyed to the children of Jacques Clamorgan in 1803, vested in Apauline in severalty by survivorship, upon the death of Cyprian, who died before attaining the age of (25) twenty-five years. 3 Mo. R. 40, Dougal v. Fryer. 2nd. That it appears clearly from the statements made by Apauline, and her conduct in relation to the matter, particularly from her recitals in the deed to A. Fryer, that she regarded every attempt made by Cyprian M. Clamorgan, to alienate the premises in controversy, as inoperative and void, by reason of his non-age, and that she well knew that all of said premises belonged to her alone. 3rd. That at the time of the death of Apauline, she alone had the power of disposing of the premises in controversy, which embraced all of the lot conveyed by the deed to Brazeau in 1803, except so much as had been conveyed by said Apauline to Fryer, as aforesaid. 3 Mo. R. 40. That all the said interest of said Apauline in said premies, vested by her last will and testament in Louis, Louisa, and Cyprian Clamorgan, in equal portions, and that upon the death of Louisa, her interest descended to her three brothers, in equal portions, making the share of Louis four-ninths (4-9), that of Cyprian four-ninths (4-9), and that of Henry Clamorgan one-ninth (1-9), thereof; and that the premises in controversy were devised by will of Apauline, to Louis, Louisa, and Cyprian Clamorgan, by metes and bounds. 5th. That all the interest of said Louis was conveyed by him to Dr. Lane, by deed dated August 20th, 1840, which said deed was confirmed. First, by the conduct and declarations of Louis Clamorgan, on the 24th and 27th July, 1841; 5 Yerger's R. 41; 4 Cruise's Dig. title xxxii, ch. 6, § 9; 1 Inst. 50 b., 51 b.; also see § 10 of same. And, second, by his deed of confirmation to Dr. Lane, dated July 27th, 1841. 6th. That the first deed, or canceled deed, made by Louis Clamorgan to Murray McConnel, cannot be made a muniment of title to McConnel, or those claiming under him; because, First, the said McConnel expressly refused his assent to said deed; in which case no title vest thereby. Second, because said deed contained no words of revocation of the deed to Dr. Lane, and is in fact not inconsistent with said deed Third, because said canceled deed was fraudulent and void, by reason of the deception practiced on said Louis by Collins, agent of McConnel, in the phraseology of said deed. Fourth, because the said McConnel, in affirmance of his refusal to receive the said canceled deed, delivered the same to Louis Clamorgan to be canceled and because the same was canceled accordingly. 4 Cruise's Dig. title 32, ch. 24, § 18; Sheppard's Touchstone, 70; Hilliard's Abr. 416; 1 N. Hamp. R. 9; 4 N. Hamp. R. 191; 10 Mass. R. 407; 1 Greenleaf, 78. 7th. The second deed from Louis Clamorgan to Murray McConnel, cannot operate to the prejudice of Dr. Lane, because before the same was recorded, or any notice thereof, actual or constructive, was given to said Lane, or his agent, the deed of confirmation from said Louis to Dr. Lane...