Pensenneau v. Pensenneau

• Citation: 22 Mo. 27
• Parties: PENSENNEAU, Respondent, v. PENSENNEAU et al., Appellants.
• Decision Date: 31 October 1855
• Court: United States State Supreme Court of Missouri

22 Mo. 27

PENSENNEAU, Respondent,

v.PENSENNEAU et al., Appellants.

Supreme Court of Missouri.

October Term. 1855.

1. A. B. and C. (A. and B. having husbands living) owning land in co-parcenary, an amicable partition is made and equal shares allotted to each; in making the mutual conveyances to complete and perfect the partition, B. and husband and C. convey to A.'s husband instead of to A. herself; and the deeds of A. and her husband to B.'s husband and to C. are so acknowledged as to pass only the life interest of the husband: held, in a suit by A. against the heirs of her deceased husband, that there is no equity in her favor to obtain a devestiture of the title that descended to the defendants from the husband of plaintiff.

2. Semble: That lands acquired in this state in exchange for land in the state of Illinois, clothed with a trust in the latter state, will be held subject to the same trust; but the question whether the land in Illinois is held subject to a trust must be determined by the law of Illinois.

3. Where a suit is brought to enforce a trust, with reference to specific property, and the plaintiff prays a devestiture of title; and also prays that, if the court should refuse the first prayer, the rights of plaintiff and also of defendants may be ascertained and a partition and division decreed accordingly: held, that the alternative relief prayed is founded on the assumption that the cause of action is wholly misconceived, and should not be granted. A plaintiff cannot ask in his petition, that, if he should have mistaken his remedy, and should fail to obtain the relief prayed, another and a different cause of action may be tried.

Appeal from St. Louis Circuit Court.

This was an action, in the nature of suit in chancery, brought by the plaintiff, Elizabeth Pensenneau, widow of Laurent Pensenneau, against defendants, the heirs at law of said Laurent, to establish and set up a trust as against the said defendants. The facts as found by the court, and as they appear from the admissions of parties, are as follows:

In the year 1835, one John Hays died seized of the northwest quarter of block No. 78 in the city of St. Louis, and of a tract of land in St. Clair county, Illinois, as shown by the following diagrams:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Hays left three daughters, his only heirs at law, viz: the plaintiff, Elizabeth Pensenneau, then wife of Laurent Pensenneau; Catherine, then wife of Edward Caya, and Jane McKenney, a widow. In the year 1839, an amicable partition and division of the said tracts was made by the plaintiff, and her husband, Laurent Pensenneau, the said Catherine Caya and her husband, Edward, and the said Jane McKenney, as follows: for the plaintiff's share they allotted the lots marked upon the above diagrams, E. P., No. 1, E. P., No. 2, and E. P., No. 3; for Jane McKenney's share they allotted the lots marked on the above diagrams, J. McK., No. 1, and J. McK., No. 2; for Catherine Caya's share they allotted the lots marked C. C., No. 1, and C. C., No. 2. On the 9th day of July, in the said year 1839, the plaintiff and her husband, Laurent Pensenneau, the said Catherine Caya and her husband, Edward Caya, and the said Jane McKenney, with a view to complete and perfect the said partition, executed to each other mutual conveyances, according to the allotments above stated; but in conveying the share which had been allotted to plaintiff, the said Catherine Caya and husband, and the said Jane McKenney, made their conveyances to the said Laurent Pensenneau, instead of to plaintiff; so also the said Elizabeth and her husband, and the said Jane McKenney, in conveying the share which had been allotted to Catherine Caya, conveyed the same to her husband, Edward. The deeds executed by Pensenneau and wife to E. Caya, and to Jane McKenney, and also the deeds executed by the said Caya and wife to the said Laurent Pensenneau and the said Jane McKenney, were not acknowledged so as to pass the interest of the wives, Elizabeth and Catherine, in the lots in block No. 78, but were duly acknowledged so as to pass the Illinois land.

On the 15th day of April, 1840, the said Laurent Pensenneau and Elizabeth Pensenneau, his wife, conveyed to Jane McKenney the lot situated in block 78, and marked upon the above diagram E. P., No. 2, in consideration of a conveyance executed the same day by the said Jane to the said Laurent, of her portion of the Illinois land, to-wit: that marked J. McK., No. 2, on the above diagram.

On the 16th day of September, 1842, the said Catherine Caya and her husband, Edward Caya, conveyed to said Laurent Pensenneau the lot in block 78, marked upon the above diagram C. C., No. 1, which had, in making partition, been allotted for part of said Catherine's share, in consideration of a conveyance executed on the 14th of the same month by plaintiff and her husband to said Edward Caya, of the two parcels of land marked upon the above diagram E. P., No. 3, and J. McK., No. 2. It is further found by the court that the plaintiff is illiterate, being unable to read or to write, and that the partition deeds above mentioned were drawn and executed under the direction of the said Laurent Pensenneau and Edward Caya; that the said Laurent died July 18, 1848, leaving the defendants his heirs at law; that said Laurent, in his lifetime, expended the sum of $1000 in improvements upon the lots in controversy in the present suit. In the year 1848, after the death of said Laurent Pensenneau, Edward Caya and Catherine, his wife, conveyed to plaintiff all their interest in the lots in block 78, marked upon the above diagram E. P., No. 1, and C. C., No. 1. The plaintiff prays that the title of defendants to the lots in block 78, marked upon the above diagram E. P., No. 1, and C. C., No. 1, acquired by descent from Laurent Pensenneau, be devested out of them and vested in the plaintiff. The petition contains the further prayers: “or that the same decree may be made as to so much of the said interest and estate as she may be entitled to; but, if the court shall be of opinion, and shall decide upon the trial or hearing of this cause, that plaintiff is not entitled to the relief above prayed in equity and in conscience, the plaintiff prays that her rights and the rights of the defendants in the said lots of ground may be ascertained, and a partition and division of the same decreed accordingly. Plaintiff claiming and insisting that she is entitled to the whole of the two lots last above described, is yet desirous that the defendants, if the court shall adjudge they have any equitable and just title thereto, may have their interest ascertained and set off to them, and plaintiff avers that she is entitled to the following interest in the said lots at all events: First, as to the lot at the corner of Fourth and Poplar streets, she is entitled to one-third in fee as one of the heirs at law of John Hays, deceased; second, she is entitled to the interest of the said Catherine Caya as one of the heirs of said Hays, because the said interest was not conveyed by the deed of July 9, 1839, to said Laurent Pensenneau, but was conveyed to plaintiff by said Catherine Caya and husband, after the death of said Pensenneau; and, third, that as widow of said Laurent Pensenneau, she is entitled to one half of the residue as her dower, she being entitled by law to take by election one half of the real estate of her said husband as dower. Secondly, as to the lot fronting on Poplar street, (that marked in diagram C. C., No. 1,) plaintiff is entitled to as follows: First, one third thereof as one of the heirs of said Hays, the deed to Edward Caya being inoperative and void as to her, and not conveying her third to said Caya; second, she is entitled to the interest of said Catherine Caya as one of the heirs of said Hays, the said interest not having been conveyed to said Laurent by said deed No. 3, because the same is inoperative to convey it, but the said interest is vested in plaintiff by deed B, No. 4; and, third, she is entitled to one half of the residue as dower by her election as above stated.”

The court decreed that the lots marked E. P., No. 1, and C. C., No. 1, be devested out of the defendants and vested in the plaintiff; whereupon the defendant appealed to this court.

Krum & Harding, for appellant.

1. The respondent's petition contains no case for relief; taking its allegations to be true, Jane McKenney is the person entitled to such relief. 2. The respondent failed to show an implied or resulting trust. No declaration of respondent's husband was shown to the effect that such a trust existed. No consideration moved from the respondent in the conveyances made by Laurent Pensenneau, nor was any portion of the purchase money named in the deed ever paid by her. The conveyance to Laurent Pensenneau was made for a good and valid consideration, moving from him, to-wit, his conveyance of his interest in his wife's estate.

S. Reber, for respondent.

1. The only question that arises as to the lot at the corner of Fourth and Poplar streets, (marked E. P., No. 1,) is, whether the deed executed to make and consummate a partition of the wife's property, though executed to the husband, enured to the benefit of the wife. The consideration moved from her and there is a...