Cornelius v. Smith

• Citation: 55 Mo. 528
• Parties: BENJAMIN CORNELIUS, et al., Appellants, v. MARGARET SMITH, et al., Respondents.
• Decision Date: 28 February 1874
• Court: Missouri Supreme Court

55 Mo. 528

BENJAMIN CORNELIUS, et al., Appellants,

v.MARGARET SMITH, et al., Respondents.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Circuit Court.

Hall, Oliver and Vineyard, for Appellants.

I. The language of the conveyance created a trust in Mrs. Campbell for the benefit of James R. Campbell if he should do certain things, and in the event of his failure, for the benefit of himself and the other heirs of James Campbell. James R. Campbell was spoken of as “an heir,” and the remaining beneficiaries are spoken of as the “other heirs.” This language clearly shows that the phrase “other heirs” meant heirs like, but others than himself. In the event of his failure to fulfill the conditions, he and the other heirs of James Campbell became joint beneficiaries.

II. If this description of heirs is too indefinite, then a trust results to James Campbell, who according to the allegations in the petition was the real owner of the land, and his heirs after his death became the equitable owners of the same. If this use limited by the deed could not vest or was not to vest but upon a contingency, or if when the purposes for which an estate has been conveyed fail by accidents or otherwise, either on whole or in part, the use results to the grantor. (4 Kent, 299-307.)

III. The trust for James R. Campbell if he did certain things, and if he did not do what was required then to the heirs, is a springing use which was valid and will be recognized and enforced by the court. (4 Kent, 301.)

IV. A conveyance to B. to the use of C. in trust for D. executes the trust in D., though he has not the legal estate. (4 Kent, 305.)

Benj. F. Loan & Strongs and Hedenberg, for Respondents.

I. It is clear that if James Campbell, deceased, had no legal or equitable interest in the land at the time of his death, then the appellants have received no interest by inheritance from him; and the deed set out in the petition shows that the legal title to the land was conveyed to Margaret Campbell absolutely. James Richard Campbell got no interest in the land either contingent or otherwise by their deed. He could not compel Margaret Campbell to convey to him, “by paying $500, to each of the other heirs,” nor by supporting his father during his life-time.

II. The deed does not express a trust; on the contrary, it is upon its face a general warranty deed without reserve and without limitation as to her.

III. James Campbell, were he alive, could not invoke nor procure the aid of a court of law or equity to divest his wife of the title conveyed to her by Bermond; nor to enforce upon her the fulfillment of any trust upon the same for his use. His heirs, then, as such, cannot assert any title or claim to the land against said Margaret. Their right is neither more nor less than that of the ancestor through whom only the claim here is asserted.

IV. The deed to Margaret Campbell, now Smith, must be so construed as to give it effect as a conveyance of the fee to her, because it says it conveys the land “to her and to her heirs,” &c. and if the interpolated clause respecting said James Richard Campbell is repugnant to the general tenor and effect of the deed, then such repugnant provisions will be disregarded. No trust results to a husband who purchases property and causes it to be conveyed to his wife. (Turner vs. Turner, 44 Mo., 535; Alexander vs. Warrance, 17 Mo., 288; see also Henderson vs. Henderson's Exr., 13 Mo., 157.)

ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in chancery for partition of a tract of land in Buchanan county. The case stands here on a demurrer to the plaintiffs' second amended petition, which was sustained by the Circuit Court. The petition reads as follows:

“Plaintiffs, for their second amended petition, state that Elizabeth Cornelius, Martha Jane Bermond, James R. Campbell, Mary Ann Rapp and Margaret Campbell, are the sole surviving children and only heirs of James Campbell, deceased, who departed this life before the bringing of this suit, and that defendant, Margaret Smith is the widow of said James Campbell, deceased; the plaintiffs further state, that at the time of bringing this suit, Benjamin Cornelius and Elizabeth Cornelius were and they are still husband and wife, and that John Bermond and Jane Bermond were and still are husband and wife, and that Benjamin Rapp and Mary Ann Rapp were and still are husband and wife.

Plaintiffs further state, that on the 19th day of September, 1859, in the life-time of said James Campbell, deceased, the plaintiff, John Bermond, was seized in fee of the land hereinafter described, to the use of James Campbell, deceased, and that said use was not manifested in writing, but was always acknowledged by said Bermond. Plaintiffs further state, that said Bermond being seized of said land, the said James Campbell, deceased, in his life time, to-wit: on said 29th day of September, 1859, requested and desired said Bermond to convey said land to his said wife, Margaret Campbell, subject to certain conditions expressed in said conveyance, and that said Bermond and his wife, in accordance with said request, did make, execute and deliver to said Margaret Campbell, now Margaret Smith, a deed to the effect following: that is to say: This deed made and entered into this 19th day of September, in the year of our Lord Eighteen Hundred and Fifty-Seven, by and between John Bermond, Jr., and Martha Jane Bermond, his wife, of the County of Buchanan and State of Missouri, of the first part, and ...