Allen v. Claybrook

• Decision Date: 31 October 1874
• Citation: 58 Mo. 124
• Parties: ELVAN ALLEN, Jr., Respondent, v. SARAH E. CLAYBROOK, et al., Appellants.
• Court: Missouri Supreme Court

58 Mo. 124

ELVAN ALLEN, Jr., Respondent,

v.SARAH E. CLAYBROOK, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Adair Circuit Court.

DeFrance & Halliburton, for Appellants.

I. The deed of Jane Allen to Mrs. Claybrook conveyed the entire land involved in this suit. The doctrine held in 2 Redf. Wills, [1st. Ed.,] pp. 380-381, § 6, is, that a gift to one and the “issue” or children, etc. etc., is an absolute gift to the person named, and that the words “issue,” etc. etc., were to be construed as words of limitation and not a purchase. (See also Id., pp. 360, 363, 384-385.)

II. A bequest of the residue of an estate is to be regarded as personalty. (Durour vs. Motteaux, 1 Ves., 320-1.) The trust being money, the fact that it was invested in land while Mrs. Allen was a feme covert, by the trustee, does not prevent the land being treated as money. The donation was money, and was only hampered for the purpose of preventing her husband wasting it.

Ellison & Ellison, for Respondent.

I. The deed from Gatewood, trustee, to Jane Allen and her children, made them tenants in common of the land described therein. (2 Washb., 275; 53 Mo., 334.) Hence, Jane Allen could not convey the exclusive and entire title to the landVORIES, Judge, delivered the opinion of the court.

This was an action of ejectment, brought for the recovery of the possession of one undivided eighth part of the east half of the south-west fourth and the south-east quarter of section thirty-two, and the west half of the south-west quarter of section thirty-four, all in township sixty-four and range seventeen, in Adair county, Missouri.

The petition is in the usual form. The answer of the defendants first denies the facts stated in the petition, and then by way of special defense, sets up title in the defendant, Sarah E. Claybrook, and as to one quarter section of the land the defendant relied on the statute of limitations. The plaintiff replied, putting in issue the new matter set up in the answer.

The facts of the case as they appear in the bill of exceptions are about as follows: Both parties claim the land in controversy under the will of one Jane Menx, who died in the State of Kentucky. The clause of the will under which the parties claim, and the only clause in the will which could affect the rights of the parties is as follows:

“Item 11. It is my will that after defraying the above mentioned bequests and appropriations, if there be any of my estate remaining, that my executors secure the one-half thereof, by trust or otherwise, for the benefit of my niece, Mrs. Jane Allen, daughter of my sister Gatewood, (who is said to be in destitute circumstances) and her children, and not to be subject to the control of her present husband.”

The plaintiff and the defendant, Sarah E. Claybrook, who is the wife of her co-defendant, are children of Mrs. Jane Allen, the niece named in the will. It is admitted that Jane Allen died long before the commencement of this suit.

After the execution of the will by Mrs. Menx she died. A trustee was appointed to receive and hold the bequest named in the clause of the will before set forth, in trust for said Jane Allen and her children. After the appointment of the trustee, the executor of the estate of Jane Menx, under the provision of the will aforesaid, paid over to Richard Gatewood, (the trustee) the sum of $1,200. After Gatewood had received this sum of money to hold for the use of the said Jane Allen and her children, he came to the State of Missouri, and with said money entered about eight hundred acres of land from the United States, and procured the title thereto in his own name, which said land so entered included the land now in controversy. After the lands had been entered by Gatewood on the third day of October, 1852, Gatewood, the trustee, executed a deed or instrument by which he recited or referred to his appointment as trustee, the receipt by him of the sum of $1,200, as such trustee; the investment of the money in the lands, (describing the lands,) and by which he conveyed and releases his title to the lands to the said Jane Allen and her children. The language used in the deed is, “to have and to hold said tract of lands with the appurtenances, unto the said Jane Allen and her children to their only proper use, benefit and behoof forever, * * * I relinquish all my right and title to the above lands. In testimony, etc.”

Subsequent to the execution of this deed, Mrs. Jane Allen obtained a divorce from her husband, after which, for some years, she resided with her children, sometimes with the defendants, who were residing on a part of the lands now in controversy, where she died. Shortly before the death of Mrs. Jane Allen, on the 31st day of Oct., 1871, she, by deed of that date, conveyed to defendant, Sarah E. Claybrook, the lands described in the plaintiff's petition. The consideration named in the deed being two hundred dollars as well as services rendered to the grantor by the defendants. It is by virtue of this last deed that the defendants claim to hold the entirety of the title to the land in controversy, as well as by the statute of limitations as to 160 acres of the land. The defendants also offered in evidence a tax deed to the land; but it was only insisted on as a color of title in support of the plea of the statute of limitations.

The defendant, James E. Claybrook, also insists as a ground of defense to the action, as to one quarter section of the land in controversy, that at and before the time that the lands were entered at the United States land office, he was residing upon, and had improvements on said quarter of land, and that he was entitled to enter the same under and by virtue of the laws of the United States; that the said Gatewood, (trustee) proposed to the defendant, James H. Claybrook, that if he would relinquish his pre-emption right to said land and permit said Gatewood to enter the same, that he, said Gatewood, would procure or cause the said quarter section of land to be conveyed to said defendant; that said defendant did, in pursuance of such request and proposition of Gatewood, relinquish his pre-emption right to said land and permit said Gatewood to enter the same as aforesaid; that after the land was so entered, Gatewood still promised to cause the land to be conveyed to the said defendant, and that the defendant had held the possession of said land under said agreement, claiming the same as his own, for more than ten years before the bringing of this suit. It was insisted, on the other hand, that defendant had relinquished his pre-emption to the land, in consideration that he should be permitted to remain on the land, and to cultivate the same without rent, until a division of the land should be made. Upon this question, the evidence was conflicting. The court excluded the deed from Jane Allen to Sarah E. Claybrook, purporting to convey the land in controversy to said defendant, Sarah E. Claybrook, because it was immaterial for the purpose of showing any title in the defendant to the interest claimed by plaintiff in the land. To the exclusion of this evidence, the defendants excepted. The court then admitted said deed in evidence, as showing color of title in support of the statute of limitations.

It was admitted by the parties that the plaintiff is one of the children of Jane Allen, and was in existence when the will of Jane Menx was made, and at her death; that Jane Allen had nine children in addition to the plaintiff, two of whom died before the death of their mother, without children, and that two died before the death of their mother, leaving children; and that the father of Jane's children was still living. It was also agreed by the parties that the land was entered by Gatewood in December, 1849. At the close of the evidence the court of its own motion instructed the jury as follows:

“1st.--If the jury find from the evidence, that the defendants were in possession of 160 acres of land at the time it was entered by Gatewood, and that Gatewood, prior to his entry, agreed with James H. Claybrook, that if he would consent to the entry of this land by Gatewood, he would hold it for him, and from that time continuously until the commencement of this suit, defendants continued in possession of that part they were occupying as aforesaid, and claiming the whole tract as their own land, adversely to Mrs. Allen and her children, the verdict of the jury as to that 160 acres should be for defendants.”

“2nd.--By continuous possession, is not meant that defendants should have lived on the premises continuously; but that they should have had an actual possession of this land, and not abandoned it with the purpose of yielding up the possession...