Burnley v. Thomas

• Decision Date: 31 October 1876
• Citation: 63 Mo. 390
• Parties: JAS. BURNLEY, Plaintiff in Error, v. JAS. S. THOMAS, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 390

JAS. BURNLEY, Plaintiff in Error,

v.JAS. S. THOMAS, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Saline Circuit Court.

J. P. Strother, for Plaintiff in Error, cited: Metropolitan Bank of St. Louis vs. Taylor, 53 Mo. 444, 450, 451, 455; Prevot vs. Lawrence, 51 N. Y. 219; State Nat. Bank of St. Jo. vs. Robidoux, 57 Mo. 446; Meyers vs. Van Wagoner, 56 Mo. 115; Seimers vs. Kleeburg, 56 Mo. 196; DeBaun vs. VanWagoner, 56 Mo. 347; Lincoln vs. Rowe, 51 Mo. 571; 47 Mo. 504; 32 Mo. 252; 23 Mo. 457; Murray vs. Barlee, 3 Myl. & Keene, 209.

C. Breathill, for Defendants in Error.

I. The defendant Julian has no separate estate in the land, since she holds possession together with her children. (1 Black. book 2, p. 180.)

II. Should the defendant, Julian Thomas, give birth to a child or children, after the deed to the land was signed and delivered, the estate would open and become divested in quantity by the birth of subsequent children, who are let in to take vested proportions of the estate. (4 Kent, t. p. 218, s. p. 206; 44 Mo. 560.) And the provision that gives her the use, benefit and profits of the land during her life, is qualified and governed by the foregoing one. If they are inconsistent, the first must prevail. (1 Black. book 2, p. 381.)

III. The contract being void at law, equity will not enforce it against the land, unless the defendant, Julian Thomas, in the note expressly makes the debt a charge upon it--which is not the case here. (Kimm vs. Weippert, 46 Mo. 532.)

HOUGH, Judge, delivered the opinion of the court.

This was a proceeding to subject the estate of the defendant, Julian Thomas, in certain lands in Saline county, the legal title to which was vested in the defendant John W. Thomas, as trustee for her and others, to the payment of a note executed and delivered to the plaintiff by said Julian Thomas and the defendant James S. Thomas, her husband, and said John W. Thomas.

The material question presented for determination is, whether her estate in said lands was held by the trustee, Thomas, for her sole and separate use, so that she could in equity bind it for the payment of said note.

That portion of the conveyance to John W. Thomas of the lands in question, which declared the trust, is as follows: “in trust for the sole and separate use of the said Julian Thomas and her children, however reserving a quarter of an acre of said tract on which the grave yard is situate. The aforesaid tract of land is hereby conveyed to said party of the second part, as trustee, as aforesaid, to the exclusion of any husband she, the said Julian Thomas, may have, but to be occupied and enjoyed by the said Julian Thomas and her family during her natural life time, she to have the use, benefits and profits of the same during her life, and at her death it is to be the property of her children. If the said Julian Thomas should conclude. at any time, that it would be best for her to sell the land hereby conveyed, she is hereby empowered and privileged to sell and convey the same, through the trustee aforesaid, or his successors, but the money or proceeds are to be invested in land, which land is to be held and descend in the same manner as the tract conveyed by this deed to the said party of the second part, as trustee for Mrs. Julian Thomas and her children, as aforesaid.”

It is contended by the counsel for the defendants, that Julian Thomas did not acquire any separate estate in the lands conveyed to her trustee, by virtue of the foregoing provisions, inasmuch as...