Alexander v. Warrance

• Decision Date: 31 October 1852
• Parties: ALEXANDER, Appellant, v. WARRANCE et al., Respondents.
• Court: Missouri Supreme Court

17 Mo. 228

ALEXANDER, Appellant,

v.WARRANCE et al., Respondents.

Supreme Court of Missouri.

October Term, 1852.

1. No trust results to a husband, who purchases property and causes it to be conveyed to his wife's trustee.

2. A husband is entitled to curtesy in the equitable estate of his wife. The tenancy by the curtesy exists in this state.

3. A fee farm rent will be upheld in this state.

4. Under the new code, multifariousness is still an objection to a pleading, but it must be made before the hearing of a cause.

Appeal from St. Louis Circuit Court.

M. & F. P. Blair, for appellant. 1. The court below dismissed the suit because the plaintiff sought to eject a party in possession and claiming adversely, and in the same petition prayed for partition with other parties. This was error. See art. 8, § 12 of new code; also art. 3, § 6. Even if there was a misjoinder of actions, the suit ought not to have been dismissed, but the plaintiff should have been permitted to dismiss one branch of it. 2. A resulting trust cannot be set up against a purchaser for valuable consideration without notice. Property paid for by the husband and conveyed to his wife's trustee, will be held for her against the husband's claim. Martin v. Martin, 1 Comstock's Rep. 473. A fortiori will a purchaser from the heir of the wife hold it, he taking it without knowledge that the husband paid the money. 3. Even if curtesy existed in this state, a husband is not entitled to curtesy in lands held in trust for the wife. Cochran v. O'Hern, 4 Watts & Serg. 95. But our statute of descents and distributions, sec. 1, by necessary implication, takes away the common law right. Pratt v. Wright, 5 Mo. Rep. 192. 4. The estate conveyed by the city in trust to Dougherty, was an estate of inheritance and not a chattel interest. It was a fee farm. See 1 Coke, 446, note 5. 5. The trust expired on the death of Mrs. Warrance, and if not, the plaintiff is, nevertheless, entitled to partition.

J. B. King, for respondent. Partition of property cannot be made unless the petitioner holds the legal title. McCabe v. Hunter's heirs, 7 Mo. Rep. 355-6.

SCOTT, Judge, delivered the opinion of the court.

This was an action under the new code, begun in November, 1851, by Alexander against Goode, Warrance and others. Its object was to obtain a partition amongst the heirs of Catharine Warrance, and those claiming title under them, of a piece of ground situated in the St. Louis commons; and to eject Wm. Warrance, the husband of the said Catharine, from the possession of it. William Warrance alone defended the action, and it was dismissed on the ground of misjoinder or multifariousness.

It appears that the city of St. Louis, on the 10th day of October, 1843, made a perpetual lease of the premises in controversy to Joseph W. Dougherty, in trust for Catharine Warrance, he paying a yearly rent therefor, with a power to the city of declaring the lease forfeited in the event of a failure to pay the rent for the term of six months.

Warrance, in his answer, alleges that the premises had been previously leased to him by the city, and that, with a view of obtaining a better bargain, he forfeited his first contract, and a re-sale of the premises took place. That a city ordinance prohibiting his becoming a purchaser at the re-sale, as he had forfeited his first purchase, with a view of evading the ordinance, the second lease was made to Dougherty, in trust for his wife, he (Warrance) fulfilling all the stipulations imposed by the terms of the lease on the lessee. Mrs. Warrance is dead, and the defendant, her husband, contends that the property has now devolved on him, and that consequently there is no title in the heirs of Mrs. Warrance.

1. Warrance must have been strangely advised when he was told that the law...