Aubuchon v. Bender

• Court: Missouri Supreme Court
• Writing for the Court: BLISS
• Citation: Aubuchon v. Bender, 44 Mo. 560 (Mo. 1869)
• Decision Date: 31 October 1869
• Parties: PAUL AUBUCHON et al., Appellants, v. CHARLES C. BENDER et al., Respondents.

44 Mo. 560

PAUL AUBUCHON et al., Appellants,

v.CHARLES C. BENDER et al., Respondents.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Harding & Crane, for appellants.

I. Covenant to stand seized is one of the forms of conveyance upon which the statute of uses operates. (Burton, 21 Law Lib. 19, § 136; 4 Kent Com. 492.) The deed of April 23, 1844, is a covenant to stand seized. (Roe v. Tranmarr, Willes, 682.)

II. Both the deeds are voluntary conveyances, neither of them being to bona fide purchasers for a valuable consideration. The registry act, therefore, does not apply. (4 Kent, 456; Doe v. James, 16 East. 212, new ed. 406; Paul v. Fulton, 25 Mo. 157, 163; Strickland v. McCormick, 14 Mo. 166.) The statute applies only to purchasers and mortgagers. (Rev. Stat. 1835, p. 123, § 31; 4 Kent, 295; 2 Blackst. Com. 335.)

III. The five children who are named in the deed took vested remainders. (2 Sanders' Uses and Trusts, 34, and notes; 4 Kent, 202, 205, and note c; Right v. Cuba, 4 B. & C. 866; 2 Washb. 512, § 20; 2 id. 229, 230, note 2.)

IV. The quantity of the estate vested in the five children named in the deed was liable to diminution by the subsequent birth of other children of the grantor by Cecile Clement, and not otherwise.

V. The two children of the second ventre who died in the lifetime of the grantor, take nothing, because there were children of the class living at the time of the grantor's death. (2 Turner, C. R. 334 et seq.; Harrison v. Forman, 5 Ves. 307; Sturges v. Pearson, 4 Mad. 412.)

VI. The child of the second marriage (Virginia), who was born after the death of the grantor, is not entitled, because she was not in esse when the particular state determined. (2 Blackst. Com. 169; Butler's Notes to Coke Lit. 298; 1 Turner, C. R. 308; Hill. on Trustees, Wharton, 267, 377,)

Gardiner, and Garesche & Mead, for respondents.

I. The interest of the children was not vested, but contingent--dependent on their survivorship of the father. (Hempstead v. Jackson, 20 Ala. 193.)

II. Virginia Dantin, though a posthumous child, certainly inherited. (1 Blackst. Com. § 130; 2 Kent's Com. § 424; 4 Kent's Com. 248, 412.)

BLISS, Judge, delivered the opinion of the court.

This is an action of ejectment, which was originally brought in the Land Court, but transferred to the Circuit Court, to recover possession of lot six, in block one, in H. G. Soulard's addition to the city of St. Louis. The wife of Paul Aubuchon, formerly the wife of Adolph Dantin, and the other plaintiffs, children of said Adolph by said wife, claim to hold the property by virtue of a covenant to stand seized to uses executed by said Adolph and wife, then Cecile Dantin (named in the deed as Cecile Clement), April 23, 1844. It appears that about the time of the execution of this deed, the said Adolph commenced proceedings against Cecile for a divorce, which he afterward obtained, and that the original defendant, Amanda Dantin, was the second wife of said Adolph, and held under a subsequent deed, and also as devisee; but she died pending the suit, and it was revived against Bender, as her executor, and her four minor children. The plaintiffs recovered judgment in the Circuit Court for an interest in the lot in common with the defendants, and for damages and monthly rents, from which both parties appealed, and almost the only questions raised by the record pertain to the validity of the deed, to its construction, and its legal effect.

The deed, after reciting the seizin in fee of said Adolph in two parcels of land, to-wit: First, in a lot in the town of St. Ferdinand, describing it; and, second, in the lot in controversy, describing it, proceeds as follows: “Now, therefore, the said Adolph Dantin, being free from debt, desires to make provision for his wife and children by limiting the real estate aforesaid to certain uses and trusts, in consideration whereof he declares and says he is lawfully married to Cecile Clement, his present wife, by whom he has five children now living, to-wit: Adolph, Francois, Cecile, Therese, and Louise, the oldest of said children, Cecile, being about twelve years of age. And in further consideration of the premises the said Adolph doth grant, agree, declare, and say, that from henceforward he will be and stand seized in fee simple of the lot of ground first above described, and the buildings thereon situated, to the sole and separate use, benefit, and usufruct of his wife, the said Cecile Clement, during her natural life, and after her death for the use, benefit and usufruct of the five children of said Cecile above named, and their heirs, and none others, so that during the lifetime and after the death of said Cecile, her said children above named may enjoy, use and dispose of the rents, issues and profits of the said lot of ground and the improvements thereon, freely and without molestation or control of the said Adolph or any other person whomsoever, she, the said Cecile Clement, paying all taxes, rates, charges, and assessments on said lot of ground and improvements during her lifetime, but having no power to sell, mortgage, or in any wise encumber the same. And for the same consideration, the said Adolph does grant, agree, declare, and say, that from henceforth he will be and stand seized in fee simple of the lot of ground secondly above described, with the appurtenances, for his own use during his natural life, and after his death the use, benefit, usufruct and title to the same shall revert to and vest in his said five children above named, and such other children in lawful wedlock by him begotten as shall be living at the time of his death, and their heirs, without the power on the part of said Adoph to sell, alienate, in any wise encumber, or dispose of said lot of ground and appurtenances, for a period longer than his natural life. And in order to avoid any conflict or litigation growing out of this [writing illegible], Cecile, wife of said Adolph, assents hereto and relinquishes her dower in the said lot of ground secondly herein described, and joins in the execution of this deed.” The deed was duly executed April 18, 1844, and was not acknowledged but witnessed by two witnesses, and by them proved under the statute, September 30, 1846, and was recorded December 19, 1859.

Adolph Dantin obtained his divorce in May, 1844, and, four or five years after, married Amanda, by whom were born his other children, survivors of whom are defendants. In July, 1857, he deeded to one Castello the north half of the premises in controversy, in trust for his said wife Amanda during her life, remainder to their joint issue, which deed was immediately acknowledged and recorded. In 1853 the said Adolph made his will, by which he gives everything to his wife Amanda during her life and widowhood, remainder to her children by him, except a lifeinterest to his divorced wife in another parcel of land; and Amanda Dantin makes her will, giving everything to her children. Adolph Dantin died in December, 1859, and this suit was commenced the next year.

The right of the plaintiffs to anything depends, in the first instance, upon the validity of the covenant to stand seized, executed by Adolph and Cecile Dantin; for, if that deed fails, their right is cut off by the deed in trust to Castello, and the will. This first instrument is attacked upon the ground that it was not put on record until 1859, about the time of, perhaps a little after, the death of the covenantor. No evidence was offered tending to prove any fraud or deception in procuring it; but it seems to have been a deliberate settlement by and between the parties as to the two lots mentioned, giving one to the wife during her life, remainder to their children, and the other to the husband during his life, remainder to his children. The fact that he obtained a divorce in a short time, swearing to his charges against her on the very day of executing the instrument, and the fact that she made no opposition to his application, show that this division of the property and settlement upon children was made in view of their probable separation. We have only then to consider its validity as affected by being withheld from record.

At common law there was no obligation to put upon record a conveyance affecting the title of land. But the duty of registration is now imposed upon the grantee, or the person to whom, or for whose use, the conveyance or covenant is made; and, as in all other cases where a duty is imposed, he who neglects it should suffer the consequences. The object of the requirement is to compel an exhibit of titles to facilitate transfers, but principally to guard purchasers against imposition; and hence, if the prior deed is not recorded, a subsequent buyer, for good consideration, without notice, will be protected. This protection, always thrown around an innocent purchaser, and to which our statute also expressly entitles him, is founded on the broadest equity. He receives it not because the prior deed is invalid in itself--the duty of recording it is not enforced by any such penalty--but because justice will not suffer a person who omits a plain duty to set up a claim against one who has been led by that omission to invest his money in what he supposed his vendor had a right to sell. But, to entitle him to such protection, he must have parted with something of value, otherwise he is not injured; and such is the spirit, if not the letter, of the statute, and such has been its uniform interpretation. In Davis v. Ownby, 14 Mo., on page 176, the judge says: “There must be title for value under the grantor, to admit the question [want of record] being raised;” and in McCamant v. Patterson, 39 Mo., on page 110, almost the same language is used. The covenant to stand seized, of 1844, operated as a deed of gift of the remainder of the estate in controversy to the children of the covenantor. The trust deed to Castello, in 1857, would have operated as a...