Messersmith v. Messersmith

• Decision Date: 31 January 1856
• Citation: 22 Mo. 369
• Parties: MESSERSMITH, Defendant in Error, v. MESSERSMITH AND OTHERS, Plaintiffs in Error.
• Court: Missouri Supreme Court

22 Mo. 369

MESSERSMITH, Defendant in Error,

v.MESSERSMITH AND OTHERS, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1856.

1. A court of equity never lends its aid to enforce a forfeiture.

2. Where there is a breach of an express condition in a deed, the remedy of the grantor is by an entry and a suit at law, if necessary, to recover the possession; and the remedy of the grantee, or his heirs, is by a suit in equity to be relieved against the forfeiture upon making a just compensation, if a proper case for equitable relief exists, or perhaps by setting up this matter as a defence when sued at law for the possession.

3. A mother conveyed land to her son, upon an express condition inserted in the deed, that he should provide for her maintenance during her natural life. The son having maintained his mother many years, died without making any express provision for her by will or otherwise, but leaving ample means for her maintenance, which his representatives offered to apply to that purpose; held, that if there was any breach of the condition, it was a proper case for equitable relief against a forfeiture.

Error to Cole Circuit Court.

Petition by Elizabeth Messersmith, the grantor, against the heirs of Hiram Messersmith, the grantee, praying the annulment of a deed and the restoration of the land conveyed, for the non-performance of a condition inserted in the deed.

The petition stated that the plaintiff, in 1836, executed and delivered to her son Hiram, a deed for certain land, which was subject to a condition therein written, that the said Hiram should provide for her a good and sufficient maintenance during her natural life; and if he should at any time refuse or fail to provide the said maintenance, then said deed was to be void and of no effect, and in that event the plaintiff reserved to herself the right to re-enter and take possession of the land; that said Hiram took possession of the land, and continued in possession until his death in 1852; and that he died intestate, without making any provision for her support and maintenance during the remainder of her life.

Judgment by default was rendered against the adult defendants, and a guardian ad litem was appointed for the minors, who filed an answer, setting up, among other things, that the grantee, during his life, had performed all things required of him by the condition of the deed, and that his administrator, since his death, was willing and had offered to perform the condition, but that the plaintiff had refused to permit him to do so. The answer also prayed compensation for the maintenance of the plaintiff by Hiram Messersmith during his life, and for improvements made by him on the land, in case the deed should be annulled and the title of the heirs divested. The administrator of Hiram Messersmith also filed an answer setting up the same matters. Both of these answers were stricken out on motion, and a final judgment was entered, vesting the title to the land in the plaintiff. The defendant brought the case here by writ of error.

M. M. Parsons, for plaintiff in error.

1. The Circuit Court erred in striking out the answers. They contained both a legal and an equitable defence to the action. (2 Verm. 366; 2 Story, 24; 5 Georgia, 341.) 2. The right to perform the conditions of the deed descended to the heirs and legal representatives of the deceased, whose rights were not defeated by the death of their ancestor. (2 Cruise's Dig. 28-32; 4 Kent, 130.) 3. There was no breach of the condition of the deed. (2 Cruise's Dig. 28-32; 24 Wend. 146; 4 Cushing, 184; 1 Hilliard on Real Property, 367, 380; 4 Kent, 134.) 4. The court had no power to render judgment against the infants. After the answer by their guardian was stricken out, they were no longer before the court.

Gardenhire, Morrow and Edwards, for defendant in error.

1. The condition having been broken, the grantor had a right to re-enter. (1 Bacon's Abridg. tit. condition, 632; 2 Flintoff on Real Property, 228-9; 1 Reeves' Eng. Law, 294; 3 Reeves' Eng. Law, 337; 5 Viner's Abridg. 41, (A. 2); 1 Preston on Estates, 48; 5 Pick. Rep. 528; 3 Harr. & McH. Rep. 182; 5 Ohio Rep. 387; 2 Plowden Rep. 412; 8 Blackf. 138; 4 Kent's Comm. (8th ed.) 130.) 2. The grantee having died without performing the condition, the right to perform it is not transmitted to his heir. (2 Greenleaf's Cruise, 28.) 3. A part performance of a...