Hogan's Heirs v. Welcker

• Decision Date: 31 March 1851
• Citation: 14 Mo. 177
• Court: Missouri Supreme Court
• Parties: HOGAN'S HEIRS v. WELCKER & MIDDLEBAUGH.

14 Mo. 177

HOGAN'S HEIRS

v.WELCKER & MIDDLEBAUGH.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT.

This was an action of ejectment for a tract of 30 arpents of land lying in St. Louis county, in what is called the Grand Prairie common fields. The plaintiffs, after showing their representative character, proved that one Augus L. Langham had become seized, by virtue of mesne conveyances from the original confirmees, of the lots of which the tract in controversy is a portion, one of said lots being two and one-half arpents in front by forty arpents deep, and the other being two arpents in front by forty deep.

The plaintiffs then showed that the lot of two and a half arpents in front by forty deep had been divided into two equal parts by a line parallel to the front, and that Langham had conveyed the western half in fee to William Rector. Also, that the tract or lot of two by forty arpents was in like manner divided by a line parallel to the front, and the west half conveyed to William Rector by A. L. Langham; the granting words of said deed being “have sold, transferred and set over to the said William Rector, all my right, title, interest and estate in and to the one equal half of a certain tract or parcel of land this day conveyed to me by Auguste Braljean and Milanic his wife, and Louis Braljean, situate, lying and being in the place commonly called the big prairie and about three miles west of the aforesaid town of St. Louis, and containing the quantity of eighty arpents French superficial measure, and bounded northwardly by land owned by the said Langham; on the south by land formerly granted to Paul Kiercereau, and east and west by land of parties unknown, the part of the aforesaid tract by these presents sold and transferred to the said William Rector, is to be one equal half of said eighty arpents, to be surveyed and laid off on the west side of said tract and will be two arpents fronting eastwardly by twenty arpents in depth running westwardly.” The plaintiffs then proved that said William Rector took possession of the tracts to him conveyed by A. L. Langham, being in all four arpents and one-half in front by twenty in depth, at the time the same were conveyed to him by Langham, which was in the year 1818, and continued in possession up to his death which occurred in June, 1825.

The plaintiffs then showed that an execution issued from the Supreme Court of the State of Missouri in May 1824, in favor of Lewis Marlo against William Rector, and that by virtue thereof the sheriff of St. Louis county levied upon and sold thirty arpents of the above described tract of land, the part sold being the extreme west thereof, to F. R. Conway, that Conway afterwards, on the 26th of October 1826, reciting a previous agreement with William Rector to that effect, made a convayance of this tract to Arthur L. Magenis and his heirs, “to have and to hold the same in trust for the use of the legal representatives of said William Rector, as if the same were vested in the said William Rector at the time of his decease and to be distributable and applicable as other assets of said intestate.”

The plaintiffs then showed that by an order of the County Court of St. Louis county in 1837, the administrator of William Rector sold this tract of land to Matthew Hogan, by deed bearing date November 7th, 1837. No exception was taken to the regularity of the proceedings which resulted in this deed.

The plaintiffs then gave in evidence the decree of the St. Louis Circuit Court sitting as a court of equity, dated August, 1840, passing to Matthew Hogan all the estate which by virtue of the deed from F. R. Conway, dated 1826, had passed to Arthur L. Magenis, and also all the title which had theretofore been vested in George Collier, Peter Powell and Jesse Lindell, in the premises in controversy; Collier, Powell and Lindell having been trustees in deeds which had been paid off and satisfied.

The plaintiffs then identified the land in said deeds and decree mentioned with that whereof said defendants were in possession; proved possession thereof by defendants at the time when the suit was commenced, and that the same was worth per annum two hundred dollars, or at that rate monthly, and closed their case.

The defendants proved that the southern arpent of the tract of three by forty arpents, originally granted to Widow Hebert, had been conveyed to them by title paramount to that of plaintiffs, and that after the death of William Rector all the title and estate of Langham in and to the remaining arpent of the Hebert lot was sold at sheriff's sale under judgments to defendants. Also, that all the interest and estate which William Rector had in said tract of thirty arpents in 1825 was by sheriff's deed, dated December 29th, 1825, conveyed to R. Wash, under a judgment rendered against William Rector in August, 1825, and that the judgment and proceedings thereunder were regular. It was agreed mutually between the parties to this suit that each judicial sale referred to in the bill of exceptions in this cause was regular.

Whereupon the defendant prayed for, and the court gave the following instructions, to the giving of which the plaintiffs excepted. 1st. That no title sufficient to support this action passed by the administrator's sale and deed of Peter A. Walsh, public administator given in evidence in this cause. 2nd. That if the jury find from the evidence that a part of the tract of three by forty arpents of land confirmed to Widow Hebert, was conveyed by said Widow Hebert in the year 1777 to Joseph Labuxiere, that he conveyed the same to Louis Chevalier and that the same is embraced in the deed of Widow Chevalier to John Mullanphy, and of John Mullanphy to Rector & Langham in the sheriff's deed to O'Fallon, then there can be no recovery in this action for such part of said confirmation to WidowHebert. 3rd. That the deed of A. L. Langham to William Rector, given in evidence in this case, dated in August, 1818, passed to Rector if any title, only an estate during the life of said Rector. 4th. That no title passed by the decree in chancery given in evidence in this case sufficient to sustain this action.

The plaintiffs asked, and the court refused the following instruction, viz: That the sale and deed by the administrator of William Rector, and the decree in chancery given in evidence taken together, are sufficient in law to pass the legal estate to the land therein described to Matthew Hogan. The plaintiffs excepted to this refusal and the verdict and judgment being against them, they moved for a new trial which being disallowed, they sued out a writ of error to this court.

GANTT, for Plaintiffs.

I. That the deed from Conway to Magenis in trust for the legal representatives of William Rector, the consideration of said deed being part of the assets of said William Rector's personal estate, and the deed being made in pursuance of a contract made with Rector in his life-time passed the title to the real-estate mentioned therein to Rector's heirs in the same manner as if said deed had been executed to William Rector in his life-time, and made said real- estate assets in the hands of his administrator.

II. The trust created by said deed was so created that the statute of Missouri in that behalf immediately transferred thereto the legal estate which was limited to Magenis' trustee.

III. If any legal estate was outstanding in Lindell, Collier, Pettis and Magenis, it was divested by the decree of the St. Louis Circuit Court sitting in chancery, and tranferred to Hogan in 1840.

IV. By the deed from Rector's administrator to Hogan in 1837, all the interest in said real-estate, wherewith the legal representatives (heirs) of Rector were clothed by virtue of the statute of Descents, passed to and vested in Matthew Hogan, purchaser at the administrator's sale and grantee in said deed. Rev. Code, 1835, title Administration, article 3, § 6 to § 23 inclusive.

V. Langham on August 18th, 1818, purchased from Auguste and Louis Braljean, 2 by 40 arpents in the Grand Prairie for $800. This deed is made to “Langham and his heirs.” On the same day Langham, for $400, conveyed to Wm. Rector “all my right, title, interest and estate, in and to the one equal half of a certain tract of land, this day conveyed to me by Louis and Auguste Braljean,” &c. It is submitted that by these words a fee passed to Rector. 4 Cruise's Digest, ch, 21, § 7; 1 Inst. 9 b. n. 6; 10 a; 273 b; 1 T. Coke, pp. 494, 500, 501.

VI. The intention of the party of the first part (Langham) to convey a fee to Rector by this deed, is plainly manifested. The only question is, can a court effectuate this intent unless the word “heirs” be inserted in the deed? The rule requiring the word “heirs” as essential to the creation of an estate in fee, is of feudal origin, and dependent on feudal reasons only. The reasons never had any application here, and the rule should have as little.

VII. In England courts have allowed estates in fee to be created by will without the use of the word “heirs,” and the reason assigned is, that the object of courts of justice is to give effect to the intentions of a testator as far as may be. It is submitted that this rule is no less binding upon courts of justice when deeds are before them for interpretation. 6 Cruise's Dig. ch. 9, 10.

VIII. The words “all my right, title, interest and estate, have been repeatedly held to pass a fee in a devise, even in England. Brown v. Woods, 17 Mass. R. 68.

IX. In a conveyance under the statute of uses, the consideration, if full and valuable, raises a use in fee.

X. Nothing passes to Wash by the sheriff's deed of 1825, under judgment of August, 1825, for at neither of these periods had Rector any interest in the land; all his interest having been previously sold to Conway under a senior judgment.

XI. A co-partner, or one of two joint tenants in fee, may release to his co-tenant, and by the words “all his right,”...