Ewing v. Shannahan

• Decision Date: 22 December 1892
• Citation: 20 S.W. 1065,113 Mo. 188
• Parties: Ewing, Appellant, v. Shannahan
• Court: Missouri Supreme Court

20 S.W. 1065

113 Mo. 188

Ewing, Appellant, v. Shannahan

Supreme Court of Missouri, First Division

December 22, 1892

Appeal from St. Louis City Circuit Court.--Hon. Daniel Dillon Judge.

Affirmed.

D Castleman Webb, Andrew Mackay, Jr., and Frederick Ullmann for appellant.

(1)The court erred in finding for the defendant and against the plaintiff, because by the trust deed made in December, 1863 there was created such a trust and such a vested estate as it was not in the power of the parties to that deed to revoke or destroy by any act or conveyance, so far as the children of Geo. W. Ewing, Jr., are concerned, and that consequently the deed of the father to the son, of March, 1866, by which it was attempted to re-convey the property back to George W. Ewing, Jr., was and is of no effect so far as plaintiff is concerned.1 Perry on Trusts, sec. 315;Locke v. Barbour,62 Ind. 585;North v. Philbrook,34 Me. 537;Neilson v. Lagow,12 How. 106;Cleveland v. Hallett,6 Cush. 403;Farquharson v. Eichelberger,15 Md. 63;Rutledge v. Smith, 1 Busbee Eq. (N. C.) 283;Fisher v. Fields,10 Johns. 505;Stearns v. Palmer,10 Mt. 32;Gould v. Lamb,11 Met. 84;Morgan v. Moore, 3 Gray, 319;Villars v. Beaumont,1 Vern. 99;Ellison v. Ellison,6 Ves. 656;Keys v. Carleton,141 Mass. 45;Isham v. Delaware,11 N.J.Eq. 227;Gaylord v. Lafayette,115 Ind. 429;Wright v. Moody,116 Ind. 179;Bowman v. Long,89 Ill. 19;Welch v. Allen,21 Wend. 147;Ware v. Richardson,3 Md. 505;Owen v. Cooper,46 Ind. 524;2 Washburn on Real Property[4 Ed.] sec. 2, p. 507;Hildreth v. Elliott,8 Pick. 296; 4 Kent's Commentaries, 353;Revised Statutes, 1889, sec. 8834.(2)The statute of limitations does not operate as a bar to the plaintiff's right of recovery in this action, plaintiff being a minor when possession was taken by defendant, and having brought this suit within three years after attaining his majority.2 Revised Statutes, 1889, sec. 6767;Wood on Limitations of Actions[1 Ed.] sec. 208;Fisk v. Wilson,15 Tex. 430;Dyer v. Wittler,89 Mo. 97;Harris v. Ross,86 Mo. 89;Gudgell v. Lydings, Ky. Ct. of App.10 S.W. 466.

E. T. Farish for respondent.

(1)The case is entirely devoid of any equity on the part of the plaintiff.If George W. Ewing, the grandfather of the plaintiff, through nonfeasance omitted to carry the trust into execution, or through misfeasance disobeyed the directions of the trust, he rendered himself liable to the beneficiaries, whose rights were thus violated.Pomeroy's Equity Jurisprudence, sec. 1069.(2)George W. Ewing, Sr., under the conveyance of 1863, had a right to sell the property in question to Shannahan, and receiving the proceeds thereof turn the same over to George W. Ewing, Jr., and, having a right to do so directly, he could do so indirectly, and this he did by conveying the property back to George W. Ewing, Jr., and allowing him to make said conveyance and receive such purchase money.And this was done, and therefore the deed of George W. Ewing back to George W. Ewing, Jr., and the deed of the latter to Shannahan may be considered as one deed and just the same as if George W. Ewing, Sr., had joined in the deed of George W. Ewing, Jr., to Shannahan.(3) But if the deed of 1866 made by George W. Ewing, Sr., back to George W. Ewing, Jr., was inoperative to pass the title to the property in question, then the title remained in him and his heirs as trustees under the deed of 1863, and from and after 1867, when Shannahan purchased, the statute of limitations began to run.Having begun to run, nothing stopped it.Cunningham v. Snow,82 Mo. 583.The only cestui que trust in this conveyance of 1863 was the grantor, George W. Ewing, Jr.His heirs were not remaindermen, but only entitled as his legal representatives by descent, and a title by limitation that would bar George Ewing, Jr., would bar them.2 Washburn on Real Property, p. 493.(4) If a trustee, in whom is the right of action, allows the statute of limitations to run against him so as to bar his action, the action is also barred against the cestui que trust.Washburn on Real Property [5 Ed.]pp. 176, 536;Gass v. Singleton, 2 Head, 67;Bryan v. Weems, 29 Ala. 423.

BlackJ. Barclay, J., not sitting.

OPINION

Black, J.

This is an action of ejectment for a lot in the city of St. Louis.The answer is a general denial and a plea of the statute of limitations.Both parties claim under William G. Ewing.

The plaintiff put in evidence a deed, the material parts of which are in these words: "This indenture witnesseth that George W. Ewing, Jr., a devisee of William G. Ewing, * * * in consideration of $ 600 and other good and sufficient considerations, doth by these presents give, grant, bargain and sell to George W. Ewing, father of George W. Ewing, Junior, the following described real estate,"--then follows a description of the lot in question and other lots and lands in this state and in the states of Indiana, Illinois and Minnesota--"to have and to hold the same to the said George W. Ewing in trust for the uses and purposes following to-wit:

"First.The said George W. Ewing, trustee as aforesaid, shall sell and convey all such part or parts of the real estate hereby conveyed to him as he may deem most advantageous for the interests of the trust hereby created and the proceeds thereof to reinvest for the same purpose for which this trust is created, or to expend the same in improving such of the property hereby conveyed as the said trustee shall deem most advisable, and for the purpose of creating an income therefrom.

"Second.That of the income and profits arising under this trust, a reasonable sum, such as the said trustee shall deem to be sufficient, shall be expended in the maintenance of the said George W. Ewing, Jr., and the necessary expenses shall be expended for the benefit of the trust, when, and at such times, as the trustee shall think best.

"Third.Should the said trustee die before his said ward, that Jesse Holliday, of San Francisco, California, or, upon his refusal to act, such person as the court of common pleas of Allen county, Indiana, shall appoint, shall take up and continue this trust.

"Fourth.That, upon the death of the said George W. Ewing Jr., the property hereby placed in trust shall descend to the legal representatives of the said George W. Ewing, Jr., provided, however, that William G. Ewing, Jr., the adopted son of William G. Ewing, deceased, shall, under no circumstances whatever, inherit or be entitled to any part or parcel thereof."

This deed bears date the thirty-first of December, 1863, and, on the first of March, 1866, George W. Ewing, Sr., executed to George W. Ewing, Jr., a quitclaim deed of that date.This quitclaim deed refers to the deed of trust and then states that it is now desirable that the trust be terminated, and to that end the unsold property described in the deed of trust is conveyed back to the donor.Afterwards, on the fifteenth of July, 1867, George W. Ewing, Jr., and his wife, by their warranty deed, conveyed this lot to the defendant for the consideration of $ 1,800, that being its then full value.Defendant took possession under this deed and has made improvements on the property at a cost of $ 20,000, believing he had a perfect title.George W. Ewing, Jr., died on the second of December, 1872, leaving a son, the plaintiff in this case, as his only heir at law.Plaintiff was born on the sixth of September, 1866.This suit was commenced on the thirteenth of March, 1889.

On a trial without a jury the circuit court gave judgment for defendant.

1.Although the deed from George W. Ewing, Jr., conveying the property to his father, George W. Ewing, Sr., in trust, does not use the word heirs, still the deed vested in the trustee the fee simple title for the purposes specified, for under our statute the word heirs or other words of inheritance are not necessary to convey an estate in fee simple.Such an estate passes by the deed without the use of words of inheritance, unless the intent to pass a less estate is expressly stated or appears by necessary implication.Revised Statutes, 1879, sec. 3939;McCullock v. Holmes, 111 Mo. 445, 19 S.W. 1096.Here no intent to pass a less estate appears.

But without regard to this statute the deed in question would pass a fee simple estate to the trustee, for, though in general, in the absence of such a statute, words of inheritance are necessary to pass a fee, yet there are exceptions to the rule.Thus, where lands are devised or conveyed to a trustee without the use of the word heirs, and it is necessary that the trustee should take an estate of inheritance in order to enable him to carry out the intention of the donor, he will take an estate in fee simple.1 Perry on Trusts, sec. 315;Fisher v. Fields, 10 Johns. 494;Cleveland v. Hallett, 6 Cush. 403.Where, as in the case now in hand, the property is conveyed to a trustee with power to sell and convey the fee simple, an estate in fee simple is invested in the trustee.North v. Philbrook, 34 Me. 532;Neilson v. Lagow, 12 How. 98, 13 L.Ed. 909;Gould v. Lamb, 11 Met. 84.If, however, a less estate than a fee is clearly given, courts cannot enlarge it by construction; but here no intention is manifested to give a less estate.

2.A further preliminary question arises and that is what meaning is to be given to the term legal representatives in the fourth of the paragraphs specifying the trusts, whereby it is provided that, upon the death of the said George W. Ewing, Jr., the donor, the property placed in the hands of the trustee shall descend to the legal representatives of him, the said donor.The term legal representatives is often used in statutes and instruments of writing in a broad sense, so as to include...