Cornwell v. Wulff

• Decision Date: 23 December 1898
• Citation: 50 S.W. 439,148 Mo. 542
• Parties: CORNWELL et al. v. WULFF.
• Court: Missouri Supreme Court

50 S.W. 439

148 Mo. 542

CORNWELL et al. v. WULFF.

Supreme Court of Missouri.

December 23, 1898.

CONVEYANCE OF FEE IN TRUST — LIMITATION OVER — VALIDITY — COVENANTS OF TRUSTEE — EFFECT.

1. There can be no valid limitation of a remainder on the conveyance of a fee in trust.

2. The granting clause of a trust deed conveyed to the trustee a fee to hold for the benefit of the cestui que trust, and the trustee covenanted, in addition to the performance of the trust during the lifetime of the cestui que trust, to convey on her death to her husband in default of other appointment by her. Held, that the voluntary covenant of the trustee to convey to the husband could not enlarge his powers, so as to defeat the trust imposed on him by the granting clause of the deed.

Sherwood, Brace, and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Ejectment by Fred J. Cornwell and others against George W. Wulff. From a judgment for plaintiffs, defendant appeals. Affirmed.

L. F. Parker, for appellant. Thos. P. Bashaw, Eber Peacock, and H. G. Herbel, for respondents.

GANTT, P. J.

This is an action of ejectment for certain lands in St. Louis county. The plaintiffs recovered judgment for possession and rents and profits in the circuit court, and defendant appeals. This is the second appeal in the cause. The first will be found reported in 126 Mo. 355, 28 S. W. 162. The purpose of this appeal is to have this court review its opinion and judgment in Cornwell v. Orton, 126 Mo. 355, 28 S. W. 162, and overrule that case, and incidentally to overrule Green v. Sutton (decided in 1872 by the supreme court) 50 Mo. 186. The earnestness of counsel for appellant, and the thorough brief and argument which he presented, no less than the admirable tone thereof, are such that we feel impelled to review our former opinions, and examine anew the grounds upon which they were based. The common source of title was in Robert A. Yeates, and both parties claim under a deed executed by said Yeates and wife on the 15th day of October, 1859, to John A. Goodlett, as trustee, which deed is in these words (omitting the acknowledgment and certificate of record, which are in due and lawful form): "This deed, made and entered into this 15th day of October, 1859, by and between Robert A. Yeates and Sophie Yeates, his wife, of," etc., "parties of the first part, and John A. Goodlett, of," etc., "party of the second part, and Catherine Cornwell, wife of James Cornwell, of," etc., "party of the third part, witnesseth: That the said parties of the first part, in consideration of the sum of thirty-one hundred and seventy-two and 40/100 dollars, to them in hand paid by the said party of the second part, receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey, unto the said party of the second part, and his heirs and assigns, a certain tract or parcel of land, situated," etc., "to have and to hold the same, with all the rights, privileges, and appurtenances thereto belonging or in any wise appertaining, unto him, the said party of the second part, his heirs and assigns, forever, in trust, however, to and for the sole and separate use, benefit, and behoof of said Catherine Cornwell, wife of said James Cornwell. And the said John A. Goodlett, party of the second part, hereby covenants and agrees to and with the said Catherine Cornwell that he will suffer and permit her, without let or molestation, to have, hold, use, occupy, 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 said husband, and wholly free from his control or interference, and from his debts, in such manner as she may think proper, and that he will at any and all times hereafter, 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 will pay over the rents, issues, profits, and proceeds thereof which may come into his hands, and not otherwise liable, to her, the said Catherine Cornwell, in such manner as she shall in writing direct or request, and that he will, at the death of the said Catherine, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times as the said Catherine Cornwell shall by her last will and testament, or any other writing signed by her or by her authority, direct or appoint, and in default of such appointment then that he will convey said premises to said James Cornwell, his heirs or assigns." It was then admitted by both parties (1) that the defendant is now in the possession of the property, and was at the institution of this suit; (2) that Mrs. Catherine Cornwell died intestate, December 23, 1860, without having made any conveyance or appointment of said real estate under said conveyance in her lifetime; (3) that James Cornwell died December 25, 1889, and the plaintiffs are Mrs. Catherine Cornwell's children and grandchildren, and heirs of James Cornwell; (4) that the plaintiffs Frederick J. Cornwell and Catherine Holmes, wife of James C. Holmes, are the children of Catherine Cornwell, and that Charles J., Frederick J., and Benjamin S. Cornwell, infant plaintiffs, are the children of Benjamin Cornwell, who died prior to the institution of this suit, and who was the son of Catherine Cornwell, and these plaintiffs are represented in this suit by their next friend, Helen V. Cornwell, plaintiff, and widow of said Benjamin Cornwell, deceased, who was duly appointed their next friend in this case prior to the institution of this suit; (5) that James Cornwell and Catherine Cornwell were husband and wife at and prior to the date of the deed of Yeates to Goodlett; (6) that plaintiffs are the only heirs at law of Catherine Cornwell; (7) that the value of the monthly rents and profits of the premises is, and since James Cornwell died has been, $10. Whereupon plaintiff rested. The defendant then asked the court to declare that under the pleadings and the evidence the plaintiff was not entitled to recover, which the court refused to do, and defendant excepted at the time. Defendant offered and read in evidence a decree of the St. Louis land court, rendered at the March term, 1862, in a case wherein James Cornwell was plaintiff and John A. Goodlett was defendant, by which decree the court required said Goodlett to convey to James Cornwell the premises described in the deed from Yeates to Goodlett, as provided in the final clause in said deed. Defendant then offered and read in evidence a deed from John A. Goodlett, as trustee, to James Cornwell, dated May 21, 1862, conveying the same property pursuant to said decree. Defendant then offered and read in evidence a warranty deed from James Cornwell to Peachey A. Garriott, dated January 31, 1867, conveying the same property. Defendant then offered and read in evidence a warranty deed from Peachey A. Garriott and wife to Hans Tyson and George W. Wulff, dated July 26, 1887, conveying the same property. Defendant then offered and read in evidence a quitclaim deed from Hans Tyson to George Wulff, dated September 21, 1887, conveying the same land. And this was all the evidence. The court found for the plaintiffs, and rendered judgment accordingly. Within four days defendant filed his motion for new trial, alleging as grounds that the court erred in refusing to declare that plaintiff was not entitled to recover, and in finding for the plaintiffs under the evidence, when the finding should have been for the defendant. This motion was overruled, and the defendant excepted at the time; and during the same term, and on August 30, 1895, defendant was given 60 days within which to file his bill of exceptions; and on October 28, 1895, defendant filed his bill of exceptions, preserving all exceptions above noted; and during the same term of court at which said judgment was rendered the defendant duly perfected his appeal to this court.

As already remarked in the accompanying statement, the deed of Robert Yeates, the common source of title, has been twice construed by this court, in Cornwell v. Orton, 126 Mo. 355, 27 S. W. 536, and Cornwell v. Wulff, 126 Mo. 355, 28 S. W. 162. In those cases it was held that the said deed created an absolute equitable fee simple in and to the land in controversy in Mrs. Catherine Cornwell, and at her death it descended to her heirs, subject to the curtesy of her husband, James Cornwell, and at his death, on the 25th of December, 1889, they were entitled to the possession thereof. It is that construction of said deed which is now, for the third time, challenged by defendant. On the former occasions it was insisted, as now, by defendant — First, that the deed only created a life estate in Mrs. Cornwell, with a power of appointment only, and that, as she failed to appoint, the trustee was authorized to convey the remainedr to Mr. Cornwell, as covenanted by the trustee; second, that, granting that the deed created an equitable fee in Mrs. Cornwell, this deed was a conveyance to uses, and the feoffor to use had a right to, and did, provide for the vesting of a fee simple upon the fee simple granted Mrs. Cornwell upon her failure to appoint as permitted by the deed. Essential to any intelligent discussion of this deed, it must be first determined what equitable estate Mrs. Cornwell took under the deed, as to duration, — whether for life or in fee simple. The words of the grant convey the land to the trustee, and his heirs and assigns, to have and to hold the same, with all the rights, privileges, and appurtenances,...