Rosier v. Graham

• Decision Date: 06 December 1898
• Citation: 48 S.W. 470,146 Mo. 352
• Parties: ROSIER v. GRAHAM et al.
• Court: Missouri Supreme Court

48 S.W. 470

146 Mo. 352

ROSIER v. GRAHAM et al.

Supreme Court of Missouri, Division No. 2.

December 6, 1898.

ESTATES TAIL — MARKETABLE TITLE — VENDOR AND PURCHASER.

A deed was to one and the heirs of her body, forever, but, if she should die without issue, then to her mother and her heirs. The mother died, leaving her as sole heir, and she has three adult children. Held, that under Rev. St. 1835, p. 119, § 5, abolishing entails, and providing that the first taker shall hold a life estate, the remainder passing as at common law, the title was not marketable, since it could not be told with certainty who the grantee's heirs would be.

Appeal from St. Louis circuit court; John M. Wood, Judge.

Bill by Edgar J. Rosier against Margaret L. Graham and others. There was a decree for plaintiff, and defendants appeal. Affirmed.

E. W. Pattison and Benjamin J. Klene, for appellants. John H. Drabelle and Edward S. Robert, for respondent.

GANTT, P. J.

This was originally a suit In equity by Rosier, the plaintiff, against Mrs. Graham, for the specific performance of a contract of sale of a parcel of unimproved real estate in the city of St. Louis, lying in block No. 247, having a front of 50 feet on the west side of Second street, being the northwest corner of Second and Mullanphy. The contract was in writing, and, among other stipulations, it was agreed that the "title of said property shall be perfect, and to be conveyed by warranty deed, free from liens and incumbrances except taxes of 1894 and thereafter. Thirty days' time was allowed to investigate the title." Being advised that Mrs. Graham had only an undivided interest in a life estate, Rosier filed his bill to compel her to convey that, and accept the ascertained value of her interest in the life estate. Mrs. Graham claimed she owned the fee simple, and filed her cross bill to require Rosier to accept the title to the lot, and pay the whole purchase price. Rosier dismissed his bill, and the case was tried on Mrs. Graham's cross bill and plaintiff's reply thereto. Pending the litigation, Mrs. Graham married Thomas J. Chewning. The St. Louis Trust Company was Mrs. Graham's trustee, and upon her marriage was made a party. Mrs. Graham subsequently died, and the trust company conveyed the lot in suit to her daughter, Mrs. Fannie Mullen, who has been substituted for her mother. The facts are substantially these: On April 17, 1845, a deed was made by William L. Burk to the lot in suit. The habendum clause of that deed is as follows: "To have and to hold the above-described lot, with all the rights and privileges to the same belonging, unto the said Sarah Stillwell and the heirs of her body, forever, with this express limitation; that, if the said Sarah Stillwell shall die without issue, then the title to the above lot to be vested in the mother of the said Sarah and the heirs of her body forever." At the time of the making of that deed Sarah Stillwell's mother, named Elizabeth, was living. She has since died, being at the time of her death a widow, leaving as her sole issue Sarah Stillwell, her only other children having died in infancy, none of them having attained the age of three years. Sarah Stillwell was twice married. By her first husband, Talbot Koehler, she had no children. By her second husband, Henry Keetley, she had four children. The first was George Francis, born in 1867; the second, Louisa, born in 1870; the third, Elizabeth, born in 1873. The fourth child was stillborn. In 1869 a suit in partition was commenced among the heirs and representatives of William L. Burk, the grantor of Sarah Stillwell, which embraced the property in controversy, and to which Sarah Stillwell, as well as Mrs. Graham, were parties. A sale was had in this proceeding, at which one Hartman became the purchaser, and his title subsequently passed to the State Bank of St. Louis. Mrs. Graham, at the date of her contract with plaintiff, held by mesne conveyance the title of Sarah Stillwell, as also the title of the State Bank, and held also a warranty deed from all three of the children of Sarah Stillwell, to wit, George Francis, Louisa, and Elizabeth, all of whom were of age when the deed was executed. Upon this state of facts, as shown at the trial, the court below made a finding that the contract of sale in question "cannot be performed by the said Margaret L. Chewning (formerly Graham) and the court doth therefore order, adjudge, and decree that the same be hereby canceled, and for naught held." Other facts may be noted, if necessary, in the discussion of the case.

1. It is conceded by both sides to this controversy that under the deed of William Burk of April 17, 1845, Sarah Stillwell, under Rev. St. 1835, p. 119, took an estate for her life only, whereas at common law she would have taken a fee tail; but the learned counsel are by no means agreed as to where the fee simple goes after the life estate, nor as to its vesting. Counsel for appellant Mrs. Mullen insist that under the Burk deed and the statute abolishing entails Sarah Stillwell took a life estate only, and that George Keetley, the eldest son of said Sarah by her husband Henry Keetley, upon his birth became seised of a vested remainder by the common-law rules of descent as her eldest son. Counsel for respondent, Rosier, assert, on the contrary, that until the life estate drops — that is to say, until the death of the first donee — it cannot be told to whom the estate in fee would, in the language of the statute of 1835, "first pass according to the common law," by virtue of the grant or devise; that the interest of him who is to take after the life tenant is contingent until the death of the life tenant, and until her death it cannot be said in whom the estate would next lodge, because, as no one is heir of a living person, the person who is to take as...