McIlvaine v. Smith

• Decision Date: 31 October 1867
• Citation: 42 Mo. 45
• Parties: MCILVAINE, Plaintiff in Error, v. SMITH et al., Defendants in Error.
• Court: Missouri Supreme Court

42 Mo. 45

MCILVAINE, Plaintiff in Error,

v.SMITH et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1867.

Error to St. Louis Circuit Court.

This suit was instituted by plaintiff against Garesche as trustee, and Thomas F. Smith as cestui que trust, under two deeds made by Charles Gibson to John F. Riggin, original trustee. Under a power of appointment reserved to Smith to change the trustee, but not the uses or trusts, Weissinger at first, and subsequently Garesche, had been substituted as trustee.

The petition in substance alleged that Gibson was only nominally the owner, by purchase from Smith, of the realty described in the petition and situate in St. Louis county; that Gibson, by two deeds, one dated the 14th day of April, A. D. 1857, and the other the 26th July, 1857, conveyed this realty to John Riggin, as trustee, for the following uses and trusts:

“That the said Riggin should have and hold the above described premises, and all the appurtenances thereto belonging, unto him and his legal representatives, subject to the following trusts, to-wit: ‘During the life of Thomas Floyd Smith, lieutenant in the United States Army (that is, the defendant), said trustee shall control and manage the said property, and shall rent and lease the same for such periods and upon such terms as shall make the same most productive, and shall receive the rents, issues, and profits of the same; and shall, out of such rents, issues, and profits, pay all taxes, assessments, and other charges upon said property, insurances upon the buildings which are or may be erected thereon, and other expenses; and shall pay over to said Thomas F. Smith, at the end of each quarter of a year during his life, the net product of said property, such payments only to be made to said Thomas F. Smith in person, or upon his order, drawn after each quarter's income shall have actually accrued, with the express limitation, upon the right of the said Smith to receive such income, that if, at any time during any quarter of the year, and before the income for each quarter becomes due, or at any time whatever before such quarter becomes due, said Thomas F. Smith should, by drawing orders upon such trustee, or in any other manner, attempt to anticipate the income of any quarter, then such income for the quarter or quarters sought to be anticipated shall not be paid to the said Smith or upon his order, but shall become a fund in the hands of the said trustee for the benefit of those entitled to the said property and its profits under this deed, according to the terms hereinafter provided; and the money accruing from the property during the quarter thus to be anticipated by the said Smith shall be loaned out by the said trustee, and shall be accumulated during the life of said Smith, and paid out after his death in the manner hereinafter provided-- the design of this whole provision for the benefit of said Thomas F. Smith being to give to the said Thomas F. a right to and interest in the rents, issues, and profits of the said property only after the actual accruing of each quarter's rent, so that before it has actually accrued neither he nor any other person claiming through him shall ever obtain any claim to or interest in any rent of any current quarter; and any attempt to control or anticipate the rent of any quarter before it is actually due shall prevent him or his assigns from ever having any rights or interest in the rents, issues, or profits so attempted to be anticipated.’ And this conveyance is made upon this further trust: ‘That if the said Thomas F. should, at his death, leave any child or children or their descendants living, then said trustee shall convey said property, and pay over all funds in his hands arising from said property, to such child or children or their descendants, in such shares and proportions as the said Thomas F. may by any writing in the nature of a last will direct; but if he should die without giving such directions, then the same shall be conveyed and paid over to such child or children or their descendants, in the same shares and proportions in which they would take real and personal property left by him to descend to and to be distributed among them by law.’ And this conveyance is made upon this further trust: ‘That if the said Thomas F. shall at his death leave neither child nor the descendants of any child living, and if he shall by last will and testament direct said trustee to convey the said property or any part thereof, or to pay over any of the money that may be in his hands under this trust, to any person, then said trustee shall convey the same and pay over the funds according to such direction.”

The deed further provided that if Smith died intestate, without children or their descendants, then the property should be held by the trustee for his brother and sister, subject to similar restrictions as before, and upon their death be conveyed to such persons as would by law be entitled to real estate descending from said Smith as his heirs.

“And this conveyance is upon this further trust: ‘That the said Thomas F. Smith during his life, and after his death those who succeed him in said property, shall have the right at any time to serve a written demand upon said trustee to convey such estate in said premises as is hereby vested in said trustee to another trustee, to be named in such demand; and thereupon said trustee shall convey the said property to such new trustee upon the like uses and trusts, and subject to the same limitations and restrictions, herein above set forth--the object of this clause being to confer on said Thomas F. Smith during his life, and after his death those who succeed him as aforesaid in said property, the power to substitute another trustee in place of said trustee herein named, but not in any manner whatever to affect or change the uses and trusts, or to alter, modify, increase, or diminish the limitations, restrictions, and stipulations hereinbefore mentioned.”

Petition further stated that “said Garesche has been duly substituted for said Riggin as trustee; that Grimsley & Co., on the 20th of November, A. D. 1860, and plaintiff, on the 22d of March, 1861, recovered judgment against said Smith; and that at a sheriff's sale, under executions issued in pursuance of these judgments, plaintiff, on 3d of May, 1861, acquired the title of Smith to this realty, and it was conveyed to him by deed duly executed, Smith at the time being in the enjoyment of the rents, issues, and profits, as granted to him by these deeds.”

Petition prayed that Garesche “be ordered and decreed by the court to pay and render to the plaintiff, from and after the day of the filing of this petition, and for and during the remainder of the natural life of him, the said Smith, by virtue of the said deeds of trust from said Gibson to said Riggin; and that the said Garesche, or his successors, in the capacity of trustees of said property, be enjoined from paying the same to any party or parties other than the plaintiff or his assignees; that generally the plaintiff herein may be fully subrogated, for and during the remainder of the life of the said Smith, to all the rights and interests which he, the said Smith, had in and to the said deeds from said Gibson to said Riggin, as aforesaid.”

A demurrer to the petition being sustained, the case came up to this court upon writ of error.

Cline, Jamison & Day, for plaintiff in error.

I. By the terms of the deed of Gibson and wife to Riggin and his successors in trust, a freehold estate for life in the use of the land in question was created in Smith, with power to appropriate the remainder in fee among his children, if he had any, at his death, and in default of children, then to any person he might see fit; and in default both of children and appointment of Smith, at his death the estate went over to his brother and sister and their children in fee.

II. Thomas F. Smith was entitled, by the terms of said deed, to the use of said estate for life, the legal estate being vested in the trustee; and by virtue of the judgments, executions, levies, sale, and sheriff's deed, all of Smith's interest, both at law and in equity, was sold, transferred, and became vested in the plaintiff, McIlvaine--2 Stor. Eq. p. 974; Green v. Spicer, 1 Russ. & M. 395.

III. Smith's equity in the land and right to the use of the estate were, by the terms of the deed, fully vested in him, and created such an estate and interest in lands as was liable to be seized and sold under judgment and execution against him to satisfy his debts. Our statute will not permit a debtor to enjoy the dominion and use of an estate and property in lands without subjecting such estate as he may have to be sold to pay his debts. Our execution law subjects all a man has as property to the payment of his debts-- R. C. 1855, § 17, p. 740; Anthony v. Rogers, 17 Mo. 394; Rankin v. Harper, 23 Mo. 579; Dunnica v. Coy, 24 Mo. 169; Brant v. Robertson, 16 Mo. 129; Dick v. Pitchford, 1 Dev. & Batt. Eq. 480; 4 Wend. 462; 4 N. H. 397; Hallett v. Thompson, 5 Paige Ch. R. 585; Whiting v. Whiting, 4 Gray, 236; Brandon v. Robinson, 18 Ves. Jr. 429; Barton v. Briscoe, 1 Jac. 603; Newton v. Reid, 4 Sim. 141; Jackson v. Hobhouse, 2 Meriv. 482; Bradley v. Peixoto, 3 Ves. 325; Graves v. Dolphin, 1 Sim. 66; Shee v. Hale, 13 Ves. 404 and note; Bank of the State v. Forney, 2 Ired. Eq. 181; Snowden v. Dales, 6 Sim. 524.

IV. The forfeiture must be equal to the entire estate; otherwise it is a mere clog on the property and enjoyment of the freehold, which is not tolerated by law--Brown v. Pocock, Coop. Ch. R. 70; Jac R. 603; 18 Ves. 429; 1 Sim. 66; Younghusband v. Gisborne, 10 Jur. 834. The court will see, by inspection of this petition, that no forfeiture is to result (whether the same be void or not) except by the voluntary act of Smith. If this extended to Smith's entire estate in the lands, it would not cover an alienation by operation of...