Burris v. Page

• Decision Date: 31 January 1849
• Citation: 12 Mo. 358
• Parties: BURRIS v. PAGE.
• Court: Missouri Supreme Court

12 Mo. 358

BURRIS

v.PAGE.

Supreme Court of Missouri.

January Term, 1849.

APPEAL FROM WASHINGTON CIRCUIT COURT.

This was an action of ejectment brought by James D. Page, wo is the eldest son of James M. and Sybill H. Page, against David Burris, for a tract of land containing 84.64 acres, lying in Washington county. On the trial, the attorneys for the parties made a case for the opinion of the court.

The facts agreed upon are as follows: That Samuel C. White was, at and before the commencement of this suit, guardian of James D. Page, having been appoint d by the County Court of Washington. That James D. Page, the plaintiff, is the eldest son of Sybill H. and James M. Page, who, prior to the date of the deed hereafter mentioned, had been lawfully married. That James D. Page was born on the 21st November, 1831; that Sybill H. Page, the wife of James M. Page, died on the 27th September, 1843; that the premises sued for and described in the declaration, are the same conveyed by Benjamin Horine and Catherine his wife (in whom was the fee), to Sybill H. Page, by deed bearing date the 20th April, 1833, which deed was considered as part of the agreement. In this deed the said Horine and wife, for the consideration of natural love and affection, and the further consideration of one dollar, conveyed to Sybill H. Page, their daughter, formerly Sybill H. Horine, and to the heirs of her body, the lands sued for, habendum to her and the heirs of her body. It was further agreed that James M. and Sybill H. Page, had besides James D. Page, who is the eldest, four boys and one girl. It was further admitted that the defendant, David Burris, obtained judgment against James M. Page, the husband of Sybill H. Page; the execution issned; that the land sued for was levied on and sold by the sheriff; that at said sale the defendant became the purchaser of said land, and that the sheriff executed and acknowledged to said Burris a deed for said land, by which he acquired all the right and title of James M. Page that said Page acquired in virtue of his marriage with Sybill H. Page. It is further admitted that the defendant commenced an action of ejectment against James M. Page on the 25th August, 1843, who was at that date in possession of the premises sued for, and on the 1st May, 1845, there was a judgment of possession in favor of said Burris, and against said James M. Page, by which he got possession. The said defendant before and at the commencement of this suit, was in possession of the premises sued for, and that he is now in possession, and that Burris has no other title than that which he acquired by the purchase of James M. Page's interest. Upon this state of facts, the court rendered judgment in favor of the plaintiff, and assessed his damages. The defendant moved for a new trial, which being overruled, he appealed to this court.

FRISSELL, for Appellant. The only question for the consideration of the court, is, whether Jas. M. Page was entitled to possession of the premises by virtue of his marrying with Sybill H. Horine, having issue by the marriage, the said Sybill being seized of the land at her death. The whole matter must turn upon the construction the court shall put upon the 4th section of the act approved February 14th, 1825, regulating Conveyances. Rev. Stat. of 1825, p. 216. The object of the Legislature in passing this law, was clearly to put an end to entailed estates. It was not the intention to deprive the husband of his curtesy nor the wife of her dower. The construction of the statute which would cut off the tenant by the curtesy, would where the land was conveyed to the husband, and the heirs of his body, deprive the wife of her dower. The wording of the law appears to have been very guarded; the donee becomes a mere tenant for life, and the remainder passes on his or her death to the person or persons to whom the estate-tail would on the death of the first donee in tail first pass according to...