McDowell v. Brown

• Decision Date: 31 March 1855
• Citation: 21 Mo. 57
• Parties: MCDOWELL, Plaintiff in Error, v. BROWN et al., Defendants in Error.
• Court: Missouri Supreme Court

21 Mo. 57

MCDOWELL, Plaintiff in Error,

v.BROWN et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1855.

1. A clause in restraint of alienation, in a deed containing apt words to pass an estate in fee, will be rejected, and the deed held to pass an absolute estate in fee to the grantee, and not merely a life estate, remainder to his heirs.

Error to St. Louis Court of Common Pleas.

This was an action for the possession of a lot of ground fronting thirty feet on Third street, in block 84 of the city of St. Louis. The titles of the respective parties are sufficiently stated in the opinion of the court.W. L. Williams, for plaintiff in error. The deed of Catharine Laviolette only conveyed a life estate. The construction ought to be made on the entire deed, and every part of a deed ought, if possible, to take effect, and every word operate, and the intention of the grantor should prevail, if possible. Subsequent words shall not defeat precedent ones, if by construction they may stand together. (4 Greenleaf's Cruise, ch. 20, § 6, and note c. at bottom, § 8, and notes 2 and 3 at bottom. 2 Smith's Lead. Cases, 42, top p. 318.)

T. T. Gantt, for defendant in error.

1. The deed from Catharine Laviolette to her daughter, passed an estate in fee. 2. The condition annexed to the deed, depriving the grantee of the power of alienation, was repugnant and void. (Coke on Littleton, (quarto,) § 360, p. 223. Shepherd's Touchstone, p. 112, 113. 2 Cruise, p. 5, tit. 13, ch. 1, § 22.8 D. & E. p. 61.)

LEONARD, Judge, delivered the opinion of the court.

Both parties claimed the lot under the same original proprietor, Catharine Laviolette, who, on the 25th of May, 1816, conveyed it to her own daughter, Julia Tongas dit Laviolette, by a deed to this effect: “For and in consideration of the attachment, love and affection, and in proof thereof, for Julia Tongas dit Laviolette, my daughter, as well as for the good cares and attentions of my said daughter towards me, I have this day given, granted, released and conveyed, and by these presents, I do sell, grant, release and convey unto my said daughter, and her heirs, from henceforth and forever, and promise to guarantee against all debts or mortgages, on my part, a certain piece of ground or town lot, situate in the town of St. Louis, on Third street, bounded, &c. willing and desiring that my said daughter and her heirs may enjoy the same henceforth and forever, as a thing to them belonging, without, however, disposing of it under any pretext whatever, to the effect that, at the death of my said daughter, the said property revert to the children of my said daughter, as well living as to be born.”

The parties to the deed, mother and daughter, are both dead--the daughter leaving children surviving. The defendants are in possession under a deed from the daughter, made in 1818, and the plaintiff claims under a deed from her children, and the question is, whether the daughter, the original grantee, took an estate in fee under the deed. The grant being in express terms to the daughter and...