Speed v. St. Louis, M.B.T.R. Co.

• Decision Date: 21 March 1898
• Docket Number: 1,017.
• Citation: 86 F. 235
• Parties: SPEED v. ST. LOUIS M.B.T.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F. 235

SPEED v. ST. LOUIS M.B.T.R. CO.

No. 1,017.

United States Court of Appeals, Eighth Circuit.

March 21, 1898

This is an action of ejectment, instituted by the plaintiff in error against the defendant in error to recover possession of a lot or parcel of ground in block 422 in the city of St. Louis Mo., popularly known as the lot of ground on which was situated McDowell's Medical College.

Isaac Drake McDowell is the common source of title. It appears from the bill of exceptions that in 1843 Dr. Joseph N. McDowell made a contract of purchase for this property with the then owner, Thomas F. Smith. It would seem that, said Smith having died, one Frederick W. Beckwith was appointed administrator of his estate, and in June, 1852, under order of the probate court, the administrator made a deed to said lot to Isaac Drake McDowell. The deed recited that it was made in fulfillment of said contract of purchase, and in consideration of the payment of $1,200, made by said Joseph N. McDowell. Afterwards, on the 28th day of February, 1853 Isaac Drake McDowell conveyed this property to certain named trustees, in trust for the following purposes:

'The said parties of the second part (the trustees) and their successors in office to hold the said property for the sole use and benefit of Joseph N. McDowell during his natural life; the said property to be controlled, rented, and managed by the said parties of the second part, their successors in office, as they may deem fit, by and with the advice and consent of the said Joseph N. McDowell. And in case of the death of the said Joseph N. McDowell, the parties of the second part, their successors in office, trustees as aforesaid, shall hold the said property for the sole use and benefit of Amanda V. McDowell during her natural life; said trustees to manage, rent, and control said property as they may deem fit, by and with the advice and consent of the said Amanda V. McDowell. And in case of the death of the said Amanda V. McDowell, the trustees aforesaid shall hold said property for the joint use and benefit of the children of the joint bodies of the said Joseph N. McDowell and the said Amanda V. McDowell, his wife, during the natural lives of said children; the said trustees to manage and rent said property as they deem fit, by and with the advice and consent of the said Isaac Drake McDowell. And in case of the death of said children, the said trustees to hold said property for the sole use and benefit of the said Isaac Drake McDowell the present grantor unto him, his heirs and assigns forever.'

The said Joseph N. McDowell and Amanda V. McDowell were the father and mother of said Isaac Drake McDowell. The children born of the joint bodies of said Joseph N. McDowell and Amanda V. McDowell were John J., Charles N., and Annie W. McDowell, and said Isaac Drake McDowell. On the 28th day of May, 1866, said John J., Charles N., and Annie W. McDowell conveyed, by quitclaim deed, their interest in said lot to said Isaac Drake McDowell. Joseph N. McDowell and Amanda V. McDowell died prior to 1870, leaving the said children surviving. In February, 1871, Isaac Drake McDowell presented to the circuit court of St. Louis county a petition, reciting the facts aforesaid respecting the deed of February 28, 1853, alleging the disqualification or refusal to act of the trustees designated in said deed of trust, and praying for the appointment of William Patrick as trustee to carry out the provisions of the trust, which petition was granted, and the appointment of William Patrick was accordingly made, who accepted the trust. Thereafter, on the 18th day of April, 1871, the said trustee, William Patrick, joined Isaac Drake McDowell and wife in the execution of a deed of trust to David Rankin and Ephraim G. Obear, to secure to one Thomas R. Patton the payment of about $10,500, money borrowed by Isaac Drake McDowell from said Thomas R. Patton. On default of payment this mortgage was foreclosed and the property sold thereunder. It is admitted that the defendant's title is derived under this foreclosure sale, and that, prior to the institution of this suit, said John J., Charles N., and Annie W. McDowell, and said Isaac Drake McDowell, had departed this life; the said Isaac Drake McDowell dying last, on the 5th day of January, 1882. Annie W. McDowell intermarried with William K. Speed, of which marriage the plaintiff in this action was the only child. All the other said children died childless. On this evidence the circuit court directed the jury to return a verdict for the defendant, whereupon the plaintiff sued out this writ of error.

Henry T. Kent and James W. Williams, for plaintiff in error.

John H. Overall, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge, after stating the case as above, .

Plaintiff's counsel have displayed marked research into the nice distinctions respecting the creation of qualified estates, and rest the case largely upon the rigidity of some technical rules of construction touching such deeds to real property. We will not undertake to review all the authorities cited, as the discussion would be more academic than useful. There is in the interpretation and construction of written instruments no more marked tendency of the judicial mind than to get at directly what was the real thought and purpose of the maker of the instrument. When the language and terms employed are explicit, or have a generally accepted meaning, or, as applied to the subject-matter, have acquired a technical application, the letter of the written instrument must control. But when the language is ambiguous or vague, or the terms employed create reasonable uncertainties as to what was the actual intent of the grantor, no safer rule can obtain than to place ourselves, as near as may be, in the precise situation of the person at the time of the execution of the instrument, and read and apply every part of it as a whole, and, thus discovering what the real mind of the party was, to follow that to its practical conclusion. The court that does this will seldom go wrong, and will measurably avoid the offense of making and enforcing contracts never assented to by the parties signing them. This thought is aptly expressed in Walsh v. Hill, 38 Cal. 481:

'In the construction of written instruments we have never derived much aid from the technical rules of the books. The only rule of much value-- one which is frequently shadowed forth, but seldom, if ever, expressly stated in the books-- is to place ourselves as nearly as possible in the seats which were occupied by the parties at the time the instrument was executed; then, taking it by its four corners, read it.'

It may be regarded as the recognized rule that in the exposition of grants and contracts the construction should be upon the view of the attitude of the person making them, and upon a comparison of every part of the entire instrument, so that while endeavoring to give every substantive part operative effect, also to give it a practical rather than a theoretical application. 2 Devl.Deeds, 837, 855; Wolfe v. Dyer, 95 Mo. 545, 8 S.W. 551; Jackson v. Myers, 3 Johns. 387. And when the intention is apparent, without repugnance to the settled rules of law, it will control the technical terms; 'for the intention, and not the words, is the sense of any agreement. ' And this will prevail 'regardless of inapt expressions or careless...