Ellenmann v. Thompson

• Decision Date: 31 March 1847
• Citation: 10 Mo. 587
• Parties: ELLENMANN ET AL. v. THOMPSON.
• Court: Missouri Supreme Court

10 Mo. 587

ELLENMANN ET AL.

v.THOMPSON.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

FIELD, for Appellants. The only question involved in this case, is whether the deed of 30th May, 1842, was effectual to pass the life-estate of John Boschenstein, in the lot in question; if it was so, then nothing remained to pass under the execution sale of the plaintiff below, and the plaintiff was not entitled to recover. For the purposes of the present hearing, it will be admitted that the deed was informally executed to pass the estate of the wife. Nevertheless it may be good against the husband, John Boschenstein. Bryan v. Wear, 4 Mo. R. 106. The appellants insist that the deed was effectual, to pass the estate of John Boschenstein. 1st. He was a granting party. 1. By express words. The deed is made by “parties of the first part.” These words cannot be satisfied, without considering J. B., one of those parties. In a subsequent part of the deed, J. B. is expressly named “party of the first part.” A fair grammatical construction of the first clause of the deed, leads to the same conclusion. The deed is made by and between Emma, &c., and by and with the consent of John, &c. 2. By the manifest intentions of the parties. It was a security for a debt, contemplating a disposition by sale of the land, and authorizing the trustee to give to the purchaser a deed of the fee. It cannot be supposed that the parties intended to leave cutstanding, a life-estate in the husband. Lord Hobard says, Judges should be curious and subtle, astute to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury, which by rigid rules might be wrought out of the act. Hobart's R. 277, b. 2nd. If the deed were construed merely as a grant by the wife, and an assent to that grant by the husband, still the deed is effectual to pass the estate of the husband by way of confirmation. It is material to observe, that the deed purports to dispose of the fee, which includes the husband's life-estate. Coke says, “there be more words than dedi and concessi, that will amount to a confirmation, as dimisi; also, if a man makes a lease to A, for years, and after by his deed the lessor voluit quod haberet et teneret terram pro termina vitae suœ; this is adjudged by this verb volo to be a good confirmation for term of his life.” 2 Co. Litt. 611; Shephard's Touchstone, title Confirmation. In the case at bar the word consent is used, which is still more expressive than the word volo. Coke afterwards says, that a “confirmation is but a mere assent by deed to the grant.” 2 Co. Litt. 617. It has been objected that the wife's deed is a nullity and incapable of confirmation. It will be observed however, that the confirmation is only claimed to extend to the estate of the husband, and in this respect, the deed of the wife, is just as capable of confirmation as that of a stranger. See Bredon's case, 1 Coke's R. 191. 3rd. Another construction may be put on the deed leading to the same result. The wife, in disposing of the husband's life-estate, may be regarded as the attorney of the husband, and he in expressing his assent, and making the deed effectual, constituted her his attorney, to dispose of his estate, and to do it in the manner in which it was done. The phraseology of the instruction given by the court below, is open to criticism, but the counsel for appellants passes this by, as unimportant to a just decision of this case.

TODD, for Appellee.

1st. John Boschenstein is not a granting party to the deed of trust to Michael Tesson, given in evidence. Hé is merely introduced and mentioned in the premises as the husband of Emma, for the purpose of her having his assent to her act in the premises. It is so expressed in the deed, Also as evidence thereof, the deed shows that it was for her account and benefit; the debt to be secured being hers. To ascertain who are the grantors in a deed, we are first to look into the premises of the deed to see who are therein expressed to be the parties. 4 Cruise Dig. 26, 27. Next at the apparent interest of the parties, looking through the whole deed. And in case of doubt, arising from ambiguous language, we should be governed by the intention of the parties. 4 Cruise Dig. ch. 19, § 1. In this case six things are conclusive, that Boschenstein is not and was not intended to be a grantor. 1. Because the language of the deed expressly states him to be otherwise at the outset. 2. Because the object of the deed, was to secure an indebtedness of his wife. 3. Because for that purpose, she had something in the land to convey, to-wit: the fee. 4. Because it was a sufficient compliance with the law, to enable her to convey her fee, that her husband should be in the deed as simply a consenting party, the object of the law being her protection only, and requiring the same in cases where he has no interest, or estate, as when the fee is in his wife, for her sole benefit, &c., or the husband has before disposed of his interest, either by a voluntary sale or sale under execution. 5. The condition of the deed provides that “if the said party of the first part, shall well and truly pay, &c. if not then sell,” &c., and the balance pay over to said party of the first part. That Emma is here intended as the “party of the first part,” is evident because it is her debt, secured by her...