Guest v. Farley

• Decision Date: 31 October 1853
• Parties: GUEST, et al., Plaintiffs in Error, v. FARLEY, Defendant in Error.
• Court: Missouri Supreme Court

19 Mo. 147

GUEST, et al., Plaintiffs in Error,

v.FARLEY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1853.

1. A deed of bargain and sale, for a valuable consideration, in trust for the use of the wife of the bargainor during life, and her heirs in fee simple, raises a use in the bargainee, and the second use is not executed by the statute of uses, even though the consideration may have moved from her to whom it was limited.

Error to St. Louis Court of Common Pleas.

T. Polk, for plaintiffs in error.

1. The deed upon which this controversy arises was executed subsequent to the introduction of the common law and the British statutes anterior to the fourth year of the reign of James I. The statute of uses (27 Henry VIII) was therefore in force. It is well settled that the statute of uses only executed the first use, where a use was limited upon a use. The second use was left unexecuted and was called a trust. 1 Cruise's Dig. Trusts, ch. 1, § 4. 2. This was a deed of bargain and sale for a valuable consideration, which, by the statute of uses, raise a use in the bargainee. The statute of uses then has operated in this case by transmitting the title to the trustee, and the second use to the cestui que trust remains unexecuted. 3 Cruise's Dig. tit. 32, Deed, ch. 9, §§ 2, 3, 4, 5, et seq. 3. Again, this deed conveys the land to a trustee, for the separate use of a married woman for life, &c. In such case, the statute does not execute the use, even if it be raised by devise and not by deed. 1 Cruise's Dig. tit. 12, ch. 1, §§ 15, 17, 19. 5 Mod. 63, 101. 1 Salk. 228.

W. L. Williams, for respondent.

This is a deed of bargain and sale; but it does not appear from its face that the money consideration was paid by the grantee. If the deed was for a good consideration only, the use was executed in the person who called it forth. The consideration here is “love and affection for the wife,” and had it stopped there, the statute would have executed the use in the wife. But it has the farther consideration of “$500 in hand paid.” It does not say that it was paid by the grantee. Now the irresistible inference is, that it was paid by the wife. If so, the use was executed in her. Another view of the case is this. The object of this deed was evidently to secure the use of the property to the grantor's wife. The wife being dead, the objects of the trust have been met, and there is no further use of any trust estate. It therefore became extinct, and the trust and legal estates became united in the heirs of Mrs. Labross. 1 Barn. & Ald. 336. 2 Tucker's Comm. 43.

SCOTT, Judge, delivered the opinion of the court.

This was an action of ejectment, begun in 1848, by the plaintiffs in error, who were plaintiffs below, against the defendant, for a lot of ground in St. Louis. The plaintiffs submitted to a non-suit and sued out this writ of error.

Francis Jourdan being the owner of the lot in dispute, on the 4th of March, 1818, conveyed it to Edward S. Gantt, by deed, a part of which is here copied: “This indenture made by and between Francis Jourdan, alias Labross, of the town of St. Louis and Territory of Missouri, of the one part, and Edward S. Gantt, of the other part, witnesseth: that the said Francis Jourdan Labross, for and in consideration of the love and affection he entertained for his dear wife, Sarah R. Labrose, and for the further consideration of five hundred dollars to him in hand paid, the receipt whereof he doth hereby acknowledge, hath given, granted, bargained and sold, and by these presents doth give grant, bargain and sell unto the said Edward S. Gantt, his heirs and assigns forever, the following lot,” &c. This conveyance was in trust for the use of the above named Sarah R. Labross, during her natural life, and in trust for the heirs of the said Sarah, in fee simple.

Gantt, the trustee, had departed this life before the bringing of the suit, and the plaintiffs are his heirs at law.

1. It will be seen that the deed was executed after the introduction of the common law and British statutes. The statute of uses was not formally enacted in this state until the year 1825. It seems to be the established doctrine, that English statutes, passed prior...