Pollard v. Union Nat'l Bank of St. Louis

• Decision Date: 30 October 1877
• Citation: 4 Mo.App. 408
• Parties: IDA M. POLLARD, BY GUARDIAN, Appellant, v. UNION NATIONAL BANK OF ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 408

IDA M. POLLARD, BY GUARDIAN, Appellant,

v.UNION NATIONAL BANK OF ST. LOUIS, Respondent.

St. Louis Court of Appeals, Missouri.

Oct. 30, 1877.

1. Under the doctrine of uses, a power of revocation may be reserved though the first use declared be in fee, and upon the happening, within a reasonable time, of a contingency on which there was to be a reverter, the former use may be made to give way.

2. Certain real estate was conveyed in fee to a trustee, in trust for the sole and separate use of the grantor's wife, and the deed invested her with absolute power to control and dispose of the property; gave her authority, with the written consent of the trustee, to sell said real estate and invest the proceeds in other property or securities, as occasion might require, such new property or securities to be held upon the terms and be subject to the conditions and stipulations expressed in the deed; and provided that if the wife died before the husband, the property conveyed should revert to him. The wife died before the husband, without having conveyed the property. Held, that the property reverted to the husband upon the wife's death.

APPEAL from St. Louis Circuit Court.

Affirmed.

T. K. SKINKER, for appellant: The devise of an estate with power of disposal will pass the fee.-- Hazel v. Hogan, 47 Mo. 277; Pendleton v. Bell, 32 Mo. 100; Wommack v. Whitmore, 58 Mo. 456; Bryan v. Christian, 58 Mo. 102; Rubey v. Barnett, 12 Mo. 7; Turner v. Timberlake, 53 Mo. 378. Upon the death of the wife the title passed to her heir at law.-- Roberts v. Moseley, 51 Mo. 286; 2 Washb. on Real Prop., 3d ed., 461, sec. 45. And the fact that she did not exercise the power of alienation did not affect the question.-- Jackson v. Bull, 10 Johns. 21; 16 Johns. A fee cannot be limited upon a fee.--2 Washb. on Real Prop. 539, and cases cited; Green v. Sutton, 50 Mo. 186. Shifting uses.--2 Washb. on Real Prop. 627, side-p. 292; Wilson on Uses, 48. The intent of a grantor cannot prevail when in conflict with a rule of law.-- Hogan v. Welcher, 14 Mo. 177.

NAT. MYERS, for respondent: Shifting or secondary uses.--4 Kent, 224, 226, 227, 323-328; 2 Washb. 23, 24, 367, 385, 388, 574. Conditional limitation.--4 Kent, 4, 139, 142; 2 Washb. 420, 421, 423-504.

HAYDEN, J., delivered the opinion of the court.

This is an action of ejectment brought to recover a lot of land on Gratiot Street, in the city of St. Louis. Judgment in the court below was for the defendant, and the plaintiff appealed. The case was tried upon an agreed statement of facts, which is as follows:

“The parties to the above entitled cause come, and, for the purposes of this cause only, agree that the facts in the case are as hereinafter set forth, and agree to submit the case to the decision of the court upon the following statement:

1. On August 10, 1856, Isaac J. Pollard was the owner in fee-simple of all the real estate mentioned and described in the petition.

2. On that day said Isaac J. Pollard, for a valuable consideration, conveyed the said real estate to Thomas Skinker, trustee of Susan M. Pollard, his wife, by a deed, the habendum clause in which was in the following words, to wit: ‘To have and to hold the said parcel of ground unto the said Skinker and his heirs forever, upon trust, nevertheless, for the sole and separate use of the said Susan M. Pollard, and subject to the following conditions and stipulations, to wit: If the said Susan M. shall die before the said Isaac J. Pollard, then the property hereby conveyed shall revert to him, the said Isaac J. Pollard; but if he shall die first, then the said property shall remain in the said Susan M., her heirs and assigns forever, subject to her absolute control and disposition; and the said Susan M. Pollard is, with the written consent of her trustee, hereby authorized and empowered to lease the property aforesaid, receive the rents therefor, and apply them in such manner as she may think proper; and she is also, with the written consent of her trustee, authorized and empowered to sell, or otherwise dispose of, the said property, or any part thereof, and invest the proceeds of sale in other property or securities, when and as often as occasion may require. The said new property or securities to be held upon the terms, and subject to the conditions and stipulations, herein designated; and if the said Skinker shall relinquish the trust aforesaid, or die, then the said Susan M. Pollard may, by writing, appoint some other person as trustee, in the place of him so relinquishing or dying, and the person so appointed shall have all the powers of the trustee herein named; and such appointment may from time to time be made by the said Susan M. Pollard, as often as it may become necessary by the relinquishment or death of any trustee.’

3. That no other portion of said deed has any bearing upon this case.

4. That Susan M. Pollard died April 26, 1861, leaving her said husband surviving her; and that during her lifetime she did not lease, sell, or otherwise dispose of said real estate, or any part thereof.

5. That on the first day of October, 1873, said Isaac J. Pollard, in order to secure a past indebtedness due from him to the defendant herein, and being then unmarried, conveyed said real estate, by deed of trust, to John Wick-ham, as trustee of said defendant, said deed containing the usual covenants and power of sale; and that under said last-mentioned deed, and pursuant to its terms and provisions, a public sale of said real estate was made by said Wickham, at which sale the defendant became the purchaser of said real estate, and received a proper deed therefor from said Wickham, and has ever since been in possession of said property.

“6. That said Isaac J....