Kinney v. Mathews

• Decision Date: 30 April 1879
• Citation: 69 Mo. 520
• Parties: KINNEY, Appellant, v. MATHEWS.
• Court: Missouri Supreme Court

69 Mo. 520

KINNEY, Appellant,

v.MATHEWS.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.Comingo & Slover and Gates & Wallace for appellant.

Gage & Ladd for respondent.

NAPTON, J.

This case depends upon the construction of three deeds: One, made in 1856, “to Mrs. Fanny A. D. Mathews, and all her children she has now or ever will have,” with this additional clause: “But it is distinctly understood if the said Fanny A. D. Mathews may hereafter conclude to sell said land, she is hereby authorized to do so by assigning it, so that the proceeds of said land is to be laid out for other land or property, to be secured to her and her children.” The second deed, made also in 1856, grants, bargains and sells to said Fanny A. D. Mathews, “and all her children she now has or ever will have,” a tract of land in Jackson county, to have and to hold unto the said Fanny A. D. Mathews, and her children aforesaid, and their heirs; but it is distinctly understood if the said Fanny A. D. Mathews may hereafter conclude to sell the above described tract of land, she is hereby empowered and authorized to do so, by arranging it so that the proceeds of said land are to be laid out for other land or property, to be conveyed so as to put the right and title in the said Fanny and her children.” The third deed, made in 1857, contains the same terms of conveyance and power of sale as the second.

In 1866 Mr. James P. Mathews, and his wife, Fanny, executed a mortgage of these lands in Jackson county, conveyed to his wife, as above stated, and also of a part of another tract in which Mrs. Mathews had an unquestioned and unconditional title, to Joseph Kinney, father of the plaintiff, to secure a loan of $7,280, made by Kinney to enable Mrs. Mathews to pay off the purchase money of a tract of land in St. Louis county, conveyed to a trustee for her use. This mortgage referred to the deeds made ten years before, as containing her power to make this disposition of the Jackson county lands. There was a sale under the mortgage, and, in 1874, the mortgagee conveyed to the plaintiff, his son, as the purchaser at said sale, all the lands described in the three deeds, and in the fourth, wherein the title of Mrs. M. was undisputed, and this ejectment was brought by said purchaser to recover possession of said lands.

The title to an undivided half of one of the tracts so mortgaged, was conceded to have been in Fanny A. D. Mathews at the date of the mortgage, and plaintiff had a judgment for this interest, but as to the other half of this tract, and the other tracts conveyed in the deeds containing the power of sale above recited, the judgment was for the defendants, upon the ground that the deeds conveying them did not authorize the mortgage to Kinney, and, therefore, that the plaintiff did not acquire any title by his purchase on their foreclosure. That the judgment was based on this ground, appears from the instruction which the court gave, which was, in substance, that the deeds from Cogswell and wife, and Quesenbury and wife to Fanny A. D. Mathews, the language of which has been recited above, did not authorize or empower her and her husband to create a lien upon the lands thereby conveyed, and, therefore, said mortgage deed was void, and the sale under it conveyed no title, and that, so far as said lands were concerned, the judgment must be for defendant.

1. POWER OF SALE IN FAVOR OF MOTHER AND CHILDREN, DEFECTIVE EXECUTION OF.

In reviewing this judgment the first question is, whether the power of sale, contained in the deeds to Mrs. Mathews, authorized the mortgage given, and, upon this question, all the judges are agreed. Whatever may be the weight of authority upon the question whether a general and unrestricted power to sell includes a power to mortgage, it is clear that the mortgage in this case was not authorized by the power. The power to sell was not a general one, but was restricted to a sale in which the proceeds should be invested in other lands or property to be settled for the uses specified in the original conveyance. The lands could only be sold or exchanged for lands previously settled or secured to the wife and children. Had the purchase of St. Louis lands been so secured, it might have been held that such a mortgage to secure the payment of the purchase money, would, if not literally, at least substantially, have been a compliance with the restrictions in the original conveyances. But these lands in St. Louis were conveyed to a trustee for Mrs. Mathews only, and her children were not at all provided for. It is useless, therefore, to examine cases in which it is held that a general power of sale includes a power to mortgage, since, in this case, there was no such general power of sale, and the mortgage given was not to secure a payment upon such an acquisition of title to other lands as was authorized by the deeds to Mrs. Mathews. There was, then, no compliance with the terms of the power in this mortgage deed from Mathews and his wife in 1866. The circuit court, therefore, held that the mortgage deed was void and conveyed no title.

2. DEFECTIVE EXECUTION OF POWER OF SALE: equitable doctrine as to effectuating conveyances.

But it is not clear that, though this deed was not a compliance with the power, which it purported to be, it was not still effectual to convey such title as the said Fanny A. D. Mathews had. Indeed, the court seems to have so held, in allowing it to pass the title of Mrs. Mathews, which was undisputed. In Campbell v. Johnson, 65 Mo. 440, in which the case of Owen v. Switzer, 51 Mo. 322, was overruled, it was held that “when a person acts for a valuable consideration, he is understood in equity to engage with the person with whom he is dealing to make the instrument as effectual as he has power to make it.” That case, in its facts, was the converse of this, but the principle established in it is equally applicable to this. That was a case in which Mrs. Campbell, having only a life estate, with a power to convey in fee, undertook to convey the entire estate, but never referred to the power, and this court held that, as she had the power to do what she intended to do, her conveyance should be held valid for this purpose, although in her deed no reference was made to the power. In the present case the power to convey the whole estate is expressly referred to, and the conveyance purports to be made by virtue of this power, but the power clearly did not authorize the conveyance; the grantor, however, had an interest which she could convey, and it would seem to follow from our decision in the case of Campbell v. Johnson, based as it was on the judgment in Sir Edward Clere's case, that a conveyance of such title, as the grantor held, ought to be upheld.

3. CONVEYANCE TO MOTHER AND CHILDREN.

This renders it necessary to determine what interest Mrs. Mathews had, and upon this point it must be conceded that there is room for doubt. At the date of the conveyance to her, she had three children; at the date of the mortgage, in 1866, she had had seven, though two of them were dead. The question is, what interest she had at the date of the conveyance to her, and her children then born, and those afterwards to be born. A tenancy in common, could certainly not be claimed, except we reject the clause in the deeds which expressly includes future-born children. They were not in esse, and could not take in fee simple. In Jeffery v. De Vitre, 24 Beav. 296, there was a devise to Louisa Jessie, wife of James Remington, “for the benefit of herself and such children as she then had or might thereafter have by her then husband,” and the question before the Master of the Rolls was, whether this devise was not a joint tenancy in her four children...