Farrar v. Christy's Adm'rs

• Decision Date: 31 March 1857
• Citation: 24 Mo. 453
• Court: Missouri Supreme Court
• Parties: FARRAR & SWERINGEN, Respondents, v. CHRISTY'S ADMINISTRATORS, Appellants.^a1

24 Mo. 453

FARRAR & SWERINGEN, Respondents,

v.CHRISTY'S ADMINISTRATORS, Appellants.^a1

Supreme Court of Missouri.

March Term, 1857.

1. William Christy, being seized in fee of four lots in the city of St. Louis, by deed dated September, 1832--his wife, Martha T., joining in the conveyance--conveyed the same to their two sons, Edmund T. and Howard F. Christy; the lots were conveyed by separate metes and bounds, two lots to Edmund and two to Howard. The deed contained the following habendum: “To have and to hold the premises aforesaid, with all the appurtenances thereunto belonging, to them and their heirs forever, upon condition that should either of the grantees herein named die without leaving legal heirs of their body, the survivor shall inherit the whole of the property hereby conveyed; and should both grantees die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to the other legal heirs of the said William and Martha T.” Edmund T. Christy died in the year 1840, without leaving heirs of his body, he having never been married. After the death of Edmund, the heirs of William and Martha T. Christy, by deed dated October 7th, 1842, released to Howard F. Christy all their “right, title, interest, estate and expectancy” in and to the said four lots; this deed of release contained the following recital: “Which lots of land were held to said Edmund T. and Howard F., in the manner specified in said deed, with cross-remainder to the survivor, and also, on a certain contingency, with remainder to the heirs general of said William Christy and Martha T. Christy,” etc. Howard F. Christy executed a bond of even date with the above release in the penal sum of $3,000 to James T. Sweringen and Martha, his wife--the said Martha being one of the heirs of William and Martha T. Christy; the said bond contained the following condition: “The condition of the above obligation is such, that, whereas, etc. [reciting the conveyance of September 20th, 1832], and, whereas, upon the happening of certain contingencies in said deed mentioned and contained, the said property, lots and parcels of ground therein specified would, by the terms of said deed, revert and belong to the heirs of the said grantors in said deed, of whom the said Martha, wife of James T. Sweringen, is one; and, whereas, the said Jame T. Sweringen and Martha, his wife, have, by their deed, made jointly with certain other heirs of the said William Christy and wife, executed to the said Howard F. Christy a release and quit-claim of all such right, title, interest, estate and expectancy in and to said property, as they would have been entitled to by virtue of the first mentioned deed upon the happening of said contingencies, had not said release been executed. Now, if the contingency in the first deed mentioned shall happen, whereby the said obligees or their heirs would have been entitled by virtue of said first mentioned deed to said property, or any part thereof, or any interest thereof, or any interest in the same, had not said release been executed, and the said Howard F. Christy, his heirs, executors or administrators shall well and truly pay to the said James T. Sweringen and Martha, his wife, their heirs, executors, etc., the value at the time of happening of said contingency of the portion, part or interest which the said Sweringen and wife, their heirs, executors or administrators would have been entitled to in said property in said first deed described by virtue of said deed, had not the said release been executed, then this obligation shall be void; otherwise shall remain in full force and virtue.” Howard F. Christy died in the year 1853, leaving a widow, but no heirs of the body.

Held, in a suit against Howard F. Christy's administrators to recover the value of the interest in said four lots (alleged to be one-sixth) that would have vested, but for the above release, in Mrs. Sweringen, at the death of Howard, without leaving heirs of his body.

1st. That, construing the deed of September 20th, 1832, with reference to the rules of the common law, Edmund T. Christy and Howard F. Christy would each have become seized in fee tail of the two lots granted to each respectively.

2d. That, by the operation of the act of February 14th, 1825 (R. C. 1825, p. 216), the estate's tail that would have vested, but for said act, in Edmund and Howard respectively, were cut down and destroyed, Edmund taking a life estate only in the two conveyed to him, and Howard a life estate only in the two lots conveyed to him; that a remainder in Edmund's two lots immediately passed in fee simple absolute to Howard (subject, however, to be divested by the birth of issue of Edmund); that a remainder in Howard's two lots passed in fee simple absolute to Edmund (subject to be divested by the birth of issue of Howard); that the remainder in Howard's two lots, which vested in fee simple absolute in Edmund, descended upon his (Edmund's) death to his heirs general, of whom Mrs. Sweringen was one.

3d. That, consequently, there was a good cause of action on said bond, inasmuch as the release above mentioned was effectual to transfer to Howard F. Christy an interest that had vested in Mrs. Sweringen in two of the four lots embraced in the deed of September 20th, 1832.

4th. That defendants were not estopped to deny that Mrs. Sweringen took an interest in said lots under the limitations of the deed of September 20th, 1832.

5th. That no recovery could be had beyond the penalty of the bond.

Appeal from St. Louis Land Court.

William Christy and Martha T. Christy, on the 20th of September, 1832, executed the following deed: “This deed, made and entered into this twentieth day of September, eighteen hundred and thirty-two, by and between William Christy, and Martha T. Christy, his wife, of the one part, and Edmund T. Christy and Howard F. Christy, of the other part, witnesseth, that for and in consideration of one dollar, to them in hand paid, the receipt whereof is hereby acknowledged, and for other good and lawful considerations, the parties of the first part do hereby give, grant and convey, and by these presents do give, grant and convey unto Edmund T. Christy [here follow the descriptions of two several lots in the city of St. Louis]; and the said William and Martha T. also conveyed as aforesaid to Howard F. Christy [here follow the descriptions of two several lots of ground in the city of St. Louis]; to have and to hold the premises aforesaid, with all the appurtenances thereunto belonging, to them and their heirs forever, upon condition that, should either of the grantees herein named die without leaving legal heirs of their body, the survivor shall inherit the whole of the property hereby conveyed, and should grantees die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to other legal heirs of the said William and Martha T. And the grantors also condition that they reserve to themselves the entire control over the property hereby conveyed, and the rents and benefits resulting from the same, during the time that they, or either of them, shall live; and the said William and Martha T. do covenant to and with the said Edmund T. and Howard F. that they will warrant and forever defend the property hereby conveyed to them and their heirs forever, against their heirs and all and every person claiming through or under them, or either. In testimony whereof we have hereunto set our hands and seals the year and day above written. [Signed] W. Christy (seal). Martha Christy (seal).”

Edmund T. Christy died in the year 1840, without leaving heirs of his body. He was never married.

In the year 1842, doubts arising as to the construction to be given to the above deed, the other heirs of William and Martha T. Christy joined in the execution of the following deed of release, dated October 7th, 1842, to Howard F. Christy: “Whereas, William Christy and Martha T. Christy, by their deed, dated twentieth day of September, eighteen hundred and thirty-two, conveyed to Edmund T. Christy about thirty feet of land fronting on Third street, being part of block ninety-one, and bounded on the south by a two-story brick house, on the north by Green street, and to run westwardly with Green street half the distance between Third and Fourth streets, with about the width of thirty feet, and also forty-three feet of said lot, beginning on Fourth street at the line which separates the Christy lot from the land owned then by J. B. Brant; thence northwardly with Fourth street forty-three feet; thence eastwardly and parallel to Green street, half the distance between Third and Fourth streets; and also did convey thereby to Howard F. Christy about forty-five feet of the front of their land on Third street (on which then stood a two-story brick house), bounded on the south by the line which separated then the said Christy and Brant's land, and on the north by the northern wall of said brick building, and to run westwardly and parallel to Green street, and with the width of about forty-five feet, half the distance between Third and Fourth streets; and they also thereby conveyed to said Howard F. Christy thirty feet of their land aforesaid, to begin at the intersection of Green and Fourth streets, thence southwardly with Fourth street thirty feet; thence eastwardly and parallel to Green street, with the width of thirty feet, half the distance between Third and Fourth streets; which lots of land were held to said Edmund T. and Howard F., in the manner specified in said deed, with cross-remainders, to the survivor, and also on a certain contingency with remainder to the heirs general of said William Christy and Martha F. Christy; and, whereas, the said Edmund T. Christy hath departed this life without issue, and the heirs of said William and Martha T. have agreed to relinquish all their estate and expectancy in said lots to the said Howard F. Christy; now, therefore, we, Mary Ann...