Cornwell v. Orton
| Decision Date | 09 January 1895 |
| Parties | Cornwell et al., Appellants, v. Orton et al. [*] |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.
Reversed and Remanded.
""E. A. Peacock, S. L. Isbell and ""T. P. Bashaw for appellants.
(1) Plaintiffs' first legal proposition is that the deed under which they claim, ""i. e., the deed from Yeates and wife to Goodlett, trustee for Catherine Cornwell vested the entire estate in the lands in Catherine Cornwell and that effect can not be given to the so-called covenant of the trustee to convey to James Cornwell, should she die without making or directing some other disposition of the land. ""Green v. Sutton, 50 Mo. 186; ""Tremmel v. Kleiboldt, 75 Mo. 255. (2) That upon the death of Catherine Cornwell, December 25, 1860, the estate vested in her heirs, plaintiffs herein, subject to the intervening particular estate of James Cornwell as tenant by curtesy. ""Tremmel v. Kleiboldt, 75 Mo. 255, and cases cited; S. C., 6 Mo.App. 549. (3) And, upon the death of James Cornwell, December 25, 1889, plaintiffs' right of action accrued. (4) This was a simple or dry trust, because, although the trust is prescribed by the donor, yet it is only what it would have been, if left to the construction of law, ""i. e., first, to permit the ""cestui que trust to occupy and receive the rents and profits; ""second, to execute conveyances, or make such disposition of the estate as the ""cestui que trust may direct; and, ""third, to protect the title, the remaining covenant to convey to James Cornwell being of no effect. And being a simple trust, it was executed by the statute of uses. 1 Perry on Trusts [4 Ed.], secs. 520, 521. (5) But if the last proposition be not the law, it is certainly the rule in this state, that, where land is conveyed to a trustee for the sole and separate use of a married woman, upon the death of her husband, the use thus created becomes immediately executed in the wife, or, if she be dead, in her legal heirs. ""Roberts v. Mosley, 51 Mo. 282; S. C., 64 Mo. 507. (6) It is plain that plaintiffs are not bound by the decree of the St. Louis land court in ""Cornwell v. Goodlett, as they were not parties to the suit; and that James Cornwell acquired no interest in the lands under the deed from Goodlett, made under the decree, or against them.
""L. F. Parker and ""John W. McElhinney for respondents.
(1) Defendants rightfully united in one answer their legal and equitable defenses. It is true, defenses must be consistent. But only such consistency is required, that the proof of one defense will not disprove the other. That the defendants made payment of incumbrances on the land and built permanent improvements thereon, believing that they had good title, does not disprove their title. 1 R. S. 1889, secs. 2050, 2051; ""Cohn v. Lehman, 93 Mo. 574; ""McCormick v. Kaye, 41 Mo.App. 263; ""Nelson v. Brodhack, 44 Mo. 596. (2) The plaintiffs have failed to show legal title in themselves. The deed to Goodlett as trustee did not convey to Mrs. Cornwell a fee simple estate. The covenant of the trustee to convey to Cornwell after her decease was not void, but was effectual to convey the remainder over to Cornwell, either upon the performance of the covenant by the trustee or by operation of the statute of uses. The legal effect of the deed was to convey to Mrs. Cornwell a life estate with a power of disposition in fee. ""Straat v. Uhrig, 56 Mo. 582; ""Harbison v. James, 90 Mo. 411; ""Lewis v. Pitman, 101 Mo. 281; ""Redman v. Barger, 24 S.W. 177; ""Smith v. Bell, 6 Pet. (U.S.) 68; ""Carr v. Dings, 58 Mo. 400; ""Chiles v. Bartleson, 21 Mo. 344; ""Cook v. Couch, 100 Mo. 29. (3) It is a mistake to suppose that the estate conveyed to Goodlett was a mere dry trust executed at once by the statute of uses. The trust was an active one, with duties to be performed by the trustee with reference to the property. The "almost universal rule" is that a conveyance to a trustee to enable a married woman to have the separate use and control of property, is construed as creating a trust, which does not become an executed use until the coverture ceases. And if the trustee still has active duties to perform, the trust may thereafter continue. ""Roberts v. Moseley, 51 Mo. 282; ""Baker v. Nall, 59 Mo. 265; ""Pitts v. Sheriff, 108 Mo. 110: 2 Washburn on Real Prop. [4 Ed.], * 168, 169. (4) In case the title of plaintiffs should be held good at law, the defendants have a good equitable defense. Before the plaintiffs can recover, they must reimburse defendants for payments made by them and the persons under whom they hold, upon the old deed of trust and for improvements and taxes. ""Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; ""Jones v. Manly, 58 Mo. 559; ""McLean v. Martin, 45 Mo. 393; ""Shroyer v. Nickell, 55 Mo. 264; ""Schafer v. Causey, 76 Mo. 365; ""Henry v. McKerlie, 78 Mo. 416. (5) Although purchase of real estate by husband but taking title in his wife's name is presumed to be a settlement on her, rather than a resulting trust for the husband, yet such presumption is only a ""prima facie one. ""Price v. Kane, 112 Mo. 412; ""Hall v. Hall, 107 Mo. 110.
This was an action of ejectment commenced in the circuit court of St. Louis county, by the heirs at law of Mrs. Catherine Cornwell, deceased, for eighteen and eighty-four one hundredths acres of land, the south part of lot number 3 of a survey and subdivision of the west half of the northwest quarter of section 12, township 44, range 5 east, made by Isaac Woods, surveyor, which said lot 3 contains twenty-eight and eighty-four one hundredths acres, and is described by metes and bounds in a deed from Robert N. Yeats and wife to John A. Goodlett, trustee for Catherine Cornwell, of date October 15, 1859, and recorded in the office of the recorder of deeds of the city, then county, of St. Louis, in volume 241, page 297. The ouster is laid as of January 2, 1890. Damages and rents and profits are also asked.
The answer admits possession and denies all the averments of the petition. For further answer defendants alleged title in fee simple in Mrs. Etta B. Orton. And for further answer, that on October 15, 1859, the said real estate in plaintiff's petition described, was owned by and in possession of one Robert A. Yeats. That being so, the owner thereof, said Robert A. Yeats, by his deed of conveyance of that date, in which his wife lawfully joined, bargained, sold and conveyed the same, with other property, to one John A. Goodlett, for a recited consideration of thirty-one hundred and seventy-two and forty hundredths dollars, which sum said deed recited was paid to said Yeats by said John A. Goodlett. That said conveyance was made to said Goodlett "to have and to hold the same, with all the rights, privileges and appurtenances thereto, belonging or in anywise appertaining unto him, the said John A. Goodlett, his heirs and assigns, forever," in trust for certain purposes and uses more specifically set forth in certain convenants of said John A. Goodlett, included and contained; that is to say, the said John A. Goodlett, by said deed, covenanted and agreed that he would suffer and permit Catherine Cornwell, without let or molestation, to have, hold, use and enjoy the aforesaid premises, with all the rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her husband, James Cornwell, and wholly free from his control or interference and from his debts in such manner as she might think proper; and that he would, at any and all times thereafter, at the request and direction of the said Catherine Cornwell, expressed in writing signed by her, or by her authority, bargain, sell, mortgage, convey, lease, rent or otherwise dispose of said premises, or any part thereof, and would pay over the rents, issues, profits and proceeds thereof, which might come into his hands, and not otherwise liable, to her, the said Catherine Cornwell, in such manner as she should, in writing, direct or request, and that he would, at the death of said Catherine Cornwell, convey or dispose of the said premises, or such part thereof as might then be held by him under said deed, and all profits and proceeds thereof, in such manner, to such person or persons and at such time or times as said Catherine Cornwell should, by her last will and testament, or by any other writing signed by her or by her authority, direct or appoint, and in default of such appointment, then that he would convey said premises to said James Cornwell, his heirs or assigns. That it was the intention of all parties to said deed to thereby vest a life estate in said Catherine Cornwell, with power of disposition, and to vest in said James Cornwell a remainder over in case of failure on the part of Catherine Cornwell to dispose of the same.
It is also charged that Mrs. Cornwell did not pay any of the purchase money for said lands, but that her husband paid it all; that after her death, Goodlett, the trustee, under a mandate of the St. Louis land court, executed and delivered a deed to said James Cornwell, conveying all of said lands to said James Cornwell and his heirs. The title is traced through various mortgages and deeds of trust executed by James Cornwell down to Mrs. Orton. There is also a plea of valuable improvements made by Halle, one of the purchasers. The answer prays for a decree for title in Mrs. Orton and for general relief. A reply denying all new matter was filed in due time.
A jury was waived and the cause was tried to the court on March 28, 1892.
Robert A. Yeats was the common source of title. The...
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