Emison v. Whittlesey

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Emison v. Whittlesey, 55 Mo. 254 (Mo. 1874)
• Decision Date: 31 January 1874
• Parties: ANN M. EMISON, et al., Respondents, v. PHILANDER R. WHITTLESEY, et al., Appellants.

55 Mo. 254

ANN M. EMISON, et al., Respondents,

v.PHILANDER R. WHITTLESEY, et al., Appellants.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Lafayette Circuit Court.

Green & Rathbun, for Respondent.

Ryland & Son, and Wallace & Mitchell, for Appellants.

I. To constitute a vested remainder, the person who takes must be in esse and ascertained by the instrument creating the same. This deed from Wm. J. Stone to Wyatt H. Stone as trustee, does not name or ascertain the children or grandchildren who are to take the remainder in said estate. The remainder created by said deed, could not vest till the death of Mary V. Stone, and was therefore contingent till that time. (2 Washb. Real Prop. [3rd Ed.], 502, § 89, 507, § 10, 509, §§ 18, 20, 22; 4 Kent's Com., 206, 207, 208; Blackst. Com., Book II., 169; Brown vs. Lawrence, 3 Bush, 390, 397; Leslie vs. Marshall, 31 Barb., 564; Croxwell vs. Sherrud, 5 Wall., 288; Aubuchon vs. Bender, 44 Mo., 560, 566, 567; Moore vs. Littel, 3 Amer Law Reg., 144, 146, 148; Fearne on Rem. Introd., 2; 4 Kent., 203, Note C.; 2 Cruise Dig., Title 16, Ch. 1, §§ 8-10-40; Pink vs. DeThusey, 2 Mad. 157; 3 Ib. 396; Hill on Trus., 72, 490.)

II. The waiver of the equitable lien by vendors, when not expressly done, is a matter of intention and presumption, subject to explanation and rebuttal, and the courts in some of the States consider this lien itself in the nature of a mortgage. (Mackrette vs. Symmons, 15 Ves., 329; White & Tudor Leading Cases in Equity, Vol. 1, 194 [S. P.], Amer. notes to same at pp. 270, 272, 274; 2 Washb. Real Prop. [3d Ed.] pp. 88, 91, [S. P.] 505-508; Adams vs. Cowherd, 30 Mo., 458 460-1; Davis vs. Lamb, 30 Mo., 441; Wallace vs. Wilson, 30 Mo., 335; Bledsoe vs. Gaines, 30 Mo., 448; Ficklin vs. Stephenson, 33 Mo., 341; Boon vs. Ewing, 17 Ohio., 500; Morris vs. Pate, 31 Mo., 315.)

NAPTON, Judge, delivered the opinion of the court.

This is an action of ejectment. The plaintiffs are the representatives of Mary V. Stone. In 1856, W. J. Stone executed a deed to Wyatt H. Stone for the land in controversy, “in trust for the sole and separate use of Mary V. Stone (mother of the plaintiff), wife of Oliver H. P. Stone, Sr., to hold for and during her natural life, so that neither the same nor the rents and profits thereof should in any way be controlled by or become subject to any debts of his contracting, and upon the death of the said Mary V., the remainder in fee simple absolute in said lands to vest in the children of the said Oliver H. P. Stone, Sr., of their marriage begotten, then living, and in the children of the deceased children of the said Oliver H. P. Stone and Mary V. Stone, if any of the children of the said Oliver and Mary die, leaving a child or children, giving to them the share that would have gone to the parent.”

In 1858, Wyatt H. Stone was, by a decree of the Circuit Court, discharged from the duties of trustee, and one Jno. S. Porter appointed, and a deed was made by Wyatt H. Stone to Porter, conveying the premises on the same terms as heretofore specified. There were some mechanic's liens on this property, but they were discharged. The defendants relied on a decree of the Circuit Court, made in November, 1862. The petition in the case which terminated in this decree, states that O. H. P. Stone executed certain notes, specifying them, as evidence of his indebtedness to the plaintiff for the purchase money of the land above referred to.

It then states the mortgage to secure these sums, executed by the defendants, Stone and wife, and the trustee, and refers to the deed that he had made, conveying the land to the trustee for the benefit of the wife and children, and then states that the defendants, John Milton Stone, Ann Mary Stone, O. H. P. Stone, Jr., William Dudley Stone and Ira Stone are the children by this marriage and are minors. The petition then refers to the mechanic's liens and their purchase by Van Camp, one of the defendants, who was the grandfather of the infant defendants. The prayer of the bill is for a judgment for his debt and interest, that the defendants be foreclosed of their equity of redemption, and that the land be sold to pay this debt, and for other relief.

The mortgage expressly recites that the said W. J. Stone has only a vendor's lien on the said tract of land to secure the purchase money, and as he was in failing circumstances, the deed was made for further security. The infant defendants were duly served, and their grandfather, Levi VanCamp, was appointed guardian ad litem. This mortgage was executed on the 25th of November, 1858, by Oliver H. P. Stone, Sr., Mary V. Stone and her trustee Wyatt H. Stone, to W. J. Stone. The suit to foreclose was by W. J. Stone against Oliver H. P. Stone and his wife Mary V., and Wyatt H. Stone, trustee, and John S. Porter, trustee, and John Milton Stone, and Mary Stone, Oliver H. P. Stone, Jr., W. Dudley Stone, Ira Stone, plaintiffs, and Levi VanCamp, grandfather of plaintiffs. There was a decree of foreclosure and order of sale in November, 1862. The mortgage was to secure the purchase money on the sale by said W. P. Stone to Wyatt H. Stone as trustee, in 1856, The deed was filed for record in 1858.

The decree in this suit for foreclosure, finds the sum of $3,241.69 to be still due on the bonds of said Stone, “for part of the consideration and purchase money which said defendant, Oliver H. P. Stone promised and agreed to pay the plaintiff, W. J. Stone, for the tract of land above described, and which defendant, O. H. P. Stone, bought of plaintiff, W. H. Stone, and which plaintiff, W. J. Stone, had heretofore, but after said purchase, conveyed by deed, at the request of said O. H. P. Stone, to said Wyattt H. Stone, in trust for the defendant, Mary V. Stone, during her natural life, and after her death to the defendants in said suit, John Milton Stone, Ann Mary Stone (now Ann Mary Emison), O. H. P. Stone, Jr., William Dudley Stone and Ira Stone, children of the said O. H. P. Stone, Sr., and his wife, Mary V. Stone.” And further, that in respect to the purchase of said land by O. H. P. Stone, Sr., and plaintiff's conveyance of the land in trust to defendant, Wyatt H. Stone, for the use of the wife and children of the purchaser, that the purchase money for said land was never paid, but still remains due and unpaid. This decree further finds, that said mortgage deed, dated the 23rd of March, 1858, executed by said O. H. P. Stone, Sr., Mary V. Stone and Wyatt H. Stone, was made to secure the original purchase money for said land to said W. J. Stone, plaintiff in suit for foreclosure, and was in aid of the lien which plaintiff, W. J. Stone, as such vendor, had and retained in and upon said land and real estate. And it was considered and ordered by said court on said decree, that the defendants, each and all of them, be forever foreclosed and barred from all benefit and advantage of redemption of, in and to said mortgaged premises and real estate, and that the same and the equity of redemption therein and thereto of said defendants be sold to satisfy the amount found to be due to said plaintiff as aforesaid, and that said plaintiff have thereof execution specially against said mortgaged premises, and...