Ryland v. Banks
| Decision Date | 14 June 1899 |
| Citation | 51 S.W. 720,151 Mo. 1 |
| Parties | Ryland et al. v. Banks et al.; Zeysing et al., Plaintiffs in Error; Coleman Buford et al., Defendants in Error |
| Court | Missouri Supreme Court |
Error to Lafayette Circuit Court. -- Hon. Charles L. Dobson Special Judge.
Reversed and remanded.
J. D Shewalter and Alexander Graves for plaintiffs in error.
(1) The deed in trust to Graves, trustee, executed by Legrand G Buford for the benefit of Ora C. Buford, authorized Graves, as trustee, upon the written request of said Ora, to convey the land by deed or mortgage, but it contained no restriction upon the power of the wife, Ora, to do that. It did not purport to confine her power of conveyance to the mode named in the deed. That mode by the terms and the purport of the deed was merely permissive and not mandatory; cumulative, and not exclusive. Green v. Sutton, 50 Mo. 190; Schafroth v. Ambs, 46 Mo. 114; Kimm v. Weippert, 46 Mo. 535; Blair v. Railroad, 89 Mo. 392; Turner v. Shaw, 96 Mo. 28. (2) It would be nonsensical to hold that Ora and her husband intended to convey the dower of their mother in these tracts or parcels of land, which dower they did not own; and nonsensical to suppose that they intended by their deed of trust to empower the trustee to make deeds in fee simple to purchasers of said dower interest. Lampert v. Haydel, 96 Mo. 445; Morrison v. Thistle, 67 Mo. 596.
Wallace & Chiles for defendants in error.
(1) The deed of Legrand G. Buford, Jr., to Alexander Graves in trust for the sole and separate use of Ora C. Buford vested the legal title in the trustee, where it remained until the death of Mrs. Buford, when the coverture being ended, the use was executed and vested the title in Coleman and Florence Buford as the heirs of their mother. Roberts v. Moseley, 51 Mo. 282; Baker v. Nall, 59 Mo. 265; Tremmel v. Klieboldt, 75 Mo. 255. It is true, as cited by counsel, that a feme sole, with respect to her separate estate, unless specially restrained by the instrument under which she acts, will not be precluded from adopting any other mode of disposition. But Mrs. Buford was in effect "specially restrained" by her trust deed, in that the legal estate was not in her but in her trustee, and she was powerless to convey it. (2) The deed of trust from L. G. Buford and wife to Zeysing, presents on its face the following indicia, showing that it was the husband's interest alone that was attempted to be conveyed. (a) The husband is named first as grantor in the deed. (b) The estate conveyed is "his" interest in the land, and to show that this is deliberate and not an error or oversight, the word "his" occurs twice in this connection. (c) The note secured in the deed of trust is of the same date as the deed, and is signed by L. G. Buford alone. Had there been any intention of creating a debt on the credit of the wife and charging her estate with it her note and not his would have been taken, or at least their joint note. (d) The trust conveyance for Mrs. Buford's benefit expressly provides that the property should be "wholly free from the debts and liabilities of the husband" and it would be contrary to the provisions of the trust deed to let the property become in this way bound for this debt of her husband. In this way she would be "specially restrained" from this method of disposing of the property.
This is a partition proceeding and the questions involved in this court arise between the defendants, Coleman Buford and Florence Eckle, who claim a part of the land partitioned, as the heirs of Legrand G. Buford, Jr., and Ora C. Buford his wife, on the one side, and the defendants, Anna Jones, Irvin Zeysing, Jr., and others, heirs of Irvin Zeysing, Sr., who claim under their ancestor to own the same part of the land, as grantees, by mesne conveyances, of Legrand G. Buford, Jr., and Ora C. Buford, his wife, on the other side.
In 1863, Legrand Buford, Sr., died seized of the land in controversy and also of other land. He left surviving him, his widow, Eusebia, two daughters and two sons, of whom Legrand G. Buford, Jr., was one. In 1886 the land was partitioned in kind, and the dower assigned to the widow of over seven hundred acres, embracing the land in controversy. She remained in possession thereof until her death in 1894. After her death this action was begun to partition the dower land.
In 1875 Legrand G. Buford, Jr., married Ora Chinn, and on January 25th, 1875, Legrand G. Buford, Jr., conveyed all his interest in the dower land to Alexander Graves, in trust for the sole and separate use of his wife Ora, the deed containing the following clause: "And the said party of the second part shall at any and all times hereafter at the request and direction of the said party of the third part expressed in writing, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises or any part thereof, to do which full power is hereby given, and shall pay over the rents, issues, profits and proceeds thereof to the said party of the third part," etc. On the 15th of November, 1875, Legrand G. Buford, Jr., and Ora C. Buford, his wife, executed a deed of trust to Irvin Zeysing, Jr., as trustee for Irvin Zeysing, Sr., on property described as: "All of his interest in the undivided estate of the late Legrand G. Buford, and all of his interest in the dower of his mother Eusebia N. Buford, deceased, as follows" (the land described in this deed is the same land described in the conveyance from Buford and wife to Graves in trust for Mrs. Buford, with the addition of seventeen acres in section 21, as to which, however, no point is made here). The deed then recites that it was made to secure the payment of a note for $ 1,438, of the same date, payable at twelve months, and signed by Legrand G. Buford, and further provides that in case of default in the payment of the note secured by the deed the trustee shall sell the land and make, execute and deliver to the purchaser "good and sufficient deed or deeds, which shall convey to said purchaser or purchasers the fee simple title in and to such real estate," etc. Ora C. Buford died on the 11th of December, 1875, leaving Coleman Buford and Florence Eckle as her sole heirs. The debt secured by the deed of trust was not paid, and on July 9th, 1877, the trustee foreclosed the deed of trust and Irvin Zeysing, Sr., became the purchaser of the land for $ 55, and received a deed from the trustee. Zeysing died and his heirs represent him in this case.
The controversy here is between the heirs of Ora Buford and the heirs of Zeysing. The controversy, in a nutshell is that the Bufords claim that the legal title to the lands was in Graves as trustee for Ora C. Buford, and that, under the deed to her, she could not convey without the trustee joined in the deed, and that as the trustee did not join in the deed of trust her interest in the land was not divested by that conveyance, but that upon her death the use was executed and the title, divested of the use, immediately vested in her heirs; and further that the deed of trust only purported to convey the interest of Legrand G. Buford, Jr., in the land, which was only an estate by curtesy, and did not pretend to convey Mrs. Buford's title, and on the other hand the Zeysing heirs claim that the method of conveyance provided in the conveyance to Graves, as trustee, is not exclusive, and that the deed of trust to Zeysing conveyed the interest of Mrs. Buford, although the trustee did not join in it, and that it was intended to be the deed of Mrs. Buford and not of Legrand G. Buford alone.
At the request of the Bufords and of its own motion, the court declared the law as follows:
1st. If the court believes from the evidence, that the deed of date the 25th day of January, 1875, from Legrand G. Buford to Alexander Graves as trustee for the use and benefit of Ora C. Buford, wife of said Legrand G. Buford, was filed for record and recorded in the recorder's office, for said Lafayette county, on the 30th day of January, 1875, by said Legrand G. Buford, or by his authority or direction, then his dominion over the same was thereby parted with, and such filing and recording thereof constituted a sufficient delivery of such deed to the grantee and beneficiary therein, who are presumed by law to have assented to and accepted the same in the absence of proof of a disclaimer thereof.
2d. The use, in said trust deed, of date January 25th, 1875, from Legrand G. Buford to Alexander Graves as trustee, conveying such lands to him, for the use of Ora C. Buford, wife of said Legrand G. Buford, as her sole and separate property, free from the control of her said husband and from liability for his debts, was not executed by the statute of uses, in her, during coverture and the lifetime of said Ora C. Buford, so as to enable her to sell, or convey by deed of trust, such undivided fourth interest in the lands thereby conveyed, during such coverture, except by and through her trustee, at her request and direction, expressed in writing, as prescribed and provided for in such deed to said Graves as trustee.
3d. The court declares the proper construction of the deed of trust from Legrand G. Buford and wife to Irvin Zeysing, as trustee of date November 15th, 1875, to secure the payment of the debt of said Legrand G. Buford to said Irvin Zeysing, Sr., to be, that such deed of trust only conveys to said Irvin Zeysing, Jr., all of the interest of said Legrand G. Buford in the undivided estate of the late Legrand G. Buford and all of his, said Legrand G. Buford's interest in the dower of his mother, Eusebia N. Buford, in said lands therein described and referred to, and does not convey nor purport to convey...
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