Richeson v. Simmons

• Decision Date: 31 October 1870
• Citation: 47 Mo. 20
• Parties: THOMAS RICHESON et al., Respondents, v. SAMUEL SIMMONS, Appellant.
• Court: Missouri Supreme Court

47 Mo. 20

THOMAS RICHESON et al., Respondents,

v.SAMUEL SIMMONS, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from St. Louis Circuit Court.

T. T. Gantt, for appellant.

I. The contract of October, 1845, settles no property on Mary Melinda except that which is therein conveyed to trustees for her use.

II. As to after-acquired property, it merely contains a covenant that Britton A. Hill will renounce all rights thereto accruing to him by reason of the marriage.

III. The marriage between Britton A. Hill and Mary Melinda does not appear to have been legally dissolved, and for all legal purposes she must be regarded as still bound by that marriage.

IV. The deed of E. H. Shepard, of June 29, 1865, conveys to Mary Melinda the complete title (legal and equitable) to the land in controversy.

V. The fact that her right to the enjoyment of this property, undisturbed by Britton A. Hill, is secured by his ante-nuptial covenant, does not diminish her estate in the land, nor cause the egal estate to vest in any other person than herself.

VI. The deed tendered by the plaintiffs to the defendant is invalid. It can have no operation as the execution of a power to appoint the use of the land, because the three essential conditions of such operation are wanting, there being no feoffee to uses, no power to appoint the use; and the use itself, as distinguished from the legal estate, having no existence. (1 Cruise's Dig. 376, ch. 111, § 5; 1 Sugd. Pow. 1, 2, § 3; id. 9, § 4; Sto. Eq. Jur., §§ 1388-92.) It can not operate as a conveyance at law under our statutes, for the formalities prescribed by these statutes have not been observed. (Gen. Stat. 1865, ch. 109, § 2; Chauvin v. Wagner, 18 Mo. 531.) Counsel reviewed the cases of Whitesides v. Cannon, 23 Mo. 457; Coats et al. v. Robinson, 10 Mo. 757; Logan v. Logan, 19 Mo. 465; Norcum v. D'Oench et al., 17 Mo. 118, and argued that they were not in point.

VII. The defendant is entitled to a complete legal and equitable title, free from all reasonable doubt. A title merely equitable, which a court of equity would compel the heirs of Mrs. Barclay to respect, and, perhaps, to perfect, is not what we are asking for. We demand a title complete in itself. But the paper tendered is not effectual for any purpose.

Glover & Shepley, and Sharp & Broadhead, for respondents.

I. The question of the validity of Mrs. Hill's divorce from Mr. Hill is immaterial.

II. Conceding that Mr. Hill was to-day the undivorced husband of Mrs. Barclay, he has no right or power over the property in

question. (Dubois v. Hale, 2 Vern. 614; Newsom v. Boyer, 3 P. W. 37; De Gaillon v. Harel, 1 B. & P. 357; Gregory v. Paul, 15 Mass. 31; Rose v. Bates, 13 Mo. 30.)

III. Mrs. Barclay's power to convey is secured to her expressly in the marriage articles of October 7, 1845.

IV. The property in question being secured in absolute right and ownership to Mrs. Barclay, her power over it results as an incident from such ownership. (Whitesides v. Cannon, 23 Mo. 457; Dyett v. N. A. Coal Co., 20 Wend. 57; Jacques v. M. E. Church, 17 Johns. 548; Bell et al. v. Kellar, 13 B. Monr. 381; Coates et al. v. Robinson, 10 Mo. 757; Logan v. Phillips, 18 Mo. 23; Logan v. Logan, 19 Mo. 465; Lyler v. Lyler, 1 Harp., ch. 288.)

V. The abandonment of Mrs. Hill by her husband, in 1845, entitled her to acquire property as a femme sole, so far as he is concerned, and dispose of it as a femme sole.

VI. The marriage articles of June 12, 1854, between Mr. Barclay and Mrs. Hill do not affect the title of the property in dispute, because all the parties therein conveyed to Simmons.

VII. The conveyance by Mrs. Hill, now Mrs. Barclay, by any deed in her lifetime, or any testamentary conveyance, whether a will or in nature of a will, is competent to pass the whole estate in the property in suit.

WAGNER, Judge, delivered the opinion of the court.

This was a suit for specific performance, and the questions presented are involved in some difficulty. From the papers in the case it appears that on the 7th day of October, 1845, Britton A. Hill and Mary Melinda Shepard, then a minor, by her guardian, Elihu H. Shepard, entered into a marriage contract, by which it was agreed that he, the said Britton, should not, in any event, take, claim, or intermeddle with any of the property of which the said Mary was seized or possessed, or of which she might thereafter be seized or possessed, by inheritance, devise, donation, purchase, or otherwise, nor with the profit, income, or interest thereof.

Holmes and Kayser were made trustees, and the property conveyed to them to execute the uses. Hill conveyed certain real estate in New York to the trustees, the rents, issues, and profits of which were to be collected and paid over for the use and benefit of the said Melinda during her lifetime; and the deed then contains this further clause: “And the said Mary Melinda Shepard, with the consent of her said guardian, and of said Britton, doth, in consideration of the premises, grant, assign, and set over unto said Kayser and Holmes, as trustees as aforesaid, all her said real estate above described, to have and to hold the same with all the appurtenances, to the said Holmes and Kayser, and the survivor of them, and the executor and administrator of each survivor, for and during the whole term of the joint lives of said Britton and Melinda, and for and during the life of said Britton, if he shall survive said Melinda, upon trust, however, for the following purposes: that they, the said trustees, shall hold, take, manage, superintend, preserve, and keep the whole of said real estate and appurtenances, and receive the rents, issues, and profits thereof, in trust for said Mary Melinda and her heirs of her body, so that no part of said estate shall be subject to any of the debts or liabilities of said Hill in any manner.”

It is further provided that the trustees, or the survivor of them, or the heirs or executors or administrators of the survivors of them, shall, upon the written request of said Melinda and said Britton, convey the real estate or personal property as they direct; and the said Britton and Melinda are authorized to appoint new trustees, by directing Kayser and Holmes, or the survivor of them, to do so in writing. Further power is given the said Melinda, in law, to devise all or any part of her said real estate and personal property by her last will and testament, or by any other writing whatever, signed with her hand, in the presence of two or more credible witnesses.

Upon the execution of this contract the marriage was solemnized between the parties, and of the marriage there was born a son, now living.

By an act of the General Assembly of the State of Missouri, approved March 2, 1849, the bonds of matrimony contracted between Britton A. Hill and Mary Melinda, his wife, were declared dissolved, and they were forever divorced from each other, and by the act they were restored to all the rights and privileges pertaining to unmarried persons, as though the marriage had never been consummated. Subsequent to this legislative divorce, and in 1854, Mary Melinda Hill intermarried with D. R. Barclay, and in 1857 Britton A. Hill was married to Miss Joanna Behrens. Of both these marriages there were issues, which are still surviving. Britton A. Hill and Mrs. Barclay are alive and still continue to reside in St. Louis.

Prior to the marriage of Mrs. Hill and Barclay, they made and executed a marriage contract, which is similar in all essential particulars to the one entered into between Hill and Mary Melinda. The trustees appointed were Richeson and Davis, and the latter becoming disqualified, Papin was appointed in his place; and they, with Barclay and wife, are now the plaintiffs in this suit.

On the 15th day of February, 1864, Elihu H. Shepard made a lease of a certain lot in the city of St. Louis, for the term of fifty years, to Simmons, the defendant herein, on certain conditions, and on the additional condition that if, at any time during the continuance of the lease, the lessor or his legal representatives should determine to sell the leased premises, he or they should first submit to the lessee the best terms as to price or payment upon which the same would be sold, and the said lessee should have...