Speed v. St. Louis Merchants Bridge Terminal Railway Company

• Decision Date: 21 May 1901
• Parties: SPEED, Appellant, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY
• Court: Missouri Supreme Court

63 S.W. 393

163 Mo. 111

SPEED, Appellant, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY

Supreme Court of Missouri, Second Division

May 21, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

Henry T. Kent and James W. Williams for appellant.

(1) The trust deed of Isaac Drake McDowell of twenty-eighth of February, 1853, expressly reserved to himself a life estate as one of "the children of the joint bodies of the said Joseph N. McDowell and the said Amanda V. McDowell," and the remainder in fee after the death of said children vested in the heirs of the grantor, the plaintiff in this case. Freeman on Co-Tenancy, sec. 110; Pratt v. Mining Co., 24 F. 869; Arthur v. Weston, 22 Mo. 378; Hamilton v. Pitcher, 53 Mo. 334; R. S. 1899, sec 4590. (2) There was no power in Isaac Drake McDowell to mortgage anything more than his life estate. (3) The ejectment suit is no bar to a subsequent suit concerning the same property. Sutton v. Dameron, 100 Mo. 141; Spencer v. O'Neill, 100 Mo. 49; Swope v. Weller 119 Mo. 556.

John H. Overall for respondent.

(1) The judgment for respondent in the case of appellant against respondent in the United States Circuit Court of Appeals, reported in 86 F. 235, on the record in which, and only on that record, this case was tried, is res judicata as to this action. There is no intention on the part of respondent to deny that the rule of law in this State is that a judgment in ejectment need not be regarded as entirely conclusive and a bar to a second action between the same parties, even if the titles and defenses in both actions are the same. It is true that in Foster v. Evans, 51 Mo. 39, this court says, "A judgment in ejectment is not a bar to another suit, or to defenses set up in a subsequent suit, unless the titles and defenses are precisely the same as they were in the first suit." The language of the judge who wrote the opinion in that case, was perhaps more comprehensive than he intended it should be, as is suggested by this court in Kimmel v. Benna, 70 Mo. 52, where it is mentioned as being "a remark of the learned judge who delivered the opinion of the court." Kimmel v. Benna overruled the broad declaration made in Foster v. Evans, and declared that a judgment in ejectment is no bar to a second action between the same parties for the same property, whether the titles and defenses in both actions be the same or not, and the rule laid down in Kimmel v. Benna has been followed in Ehez v. Inge, 87 Mo. 493; Spencer v. O'Neill, 100 Mo. 49; Sutton v. Dameron, 100 Mo. 141, and Swope v. Miller, 119 Mo. 556. (2) In the construction of deeds, as of other contracts, the object is to ascertain the intention of the parties. Bean v. Kenmeier, 86 Mo. 666; Wolfe v. Dyer, 95 Mo. 545; Walton v. Drumtra, 152 Mo. 489; Lakeview Ex. v. Railroad, 36 Mo.App. 363; Jackson v. Meyers, 3 Johns. 387; 2 Devlin on Deeds, 855. (3) The plain interpretation of the trust deed in question is that the remainder of the estate should go to the grantor. Touchstone, p. 100; Hamilton v. Pitcher, 53 Mo. 334; Pratt v. Mining Co., 24 F. 869; 1 Beach on Trusts, 267; Devlin on Deeds, 184; Freem. Co-Ten., 110.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

This is an action of ejectment to recover the possession of one hundred and fifty feet of ground beginning at a point fifty feet north of the northwest corner of Eighth and Gratiot streets, in the city of St. Louis, and running north one hundred and fifty feet along the west line of Eighth street, by a depth of seventy feet, it being the same property upon which was formerly located what was known as the "McDowell College."

Isaac Drake McDowell is the common source of title. On February 28, 1855, he executed the following conveyance of the property:

"This deed made and entered into on this the twenty-eighth day of February in the year of our Lord, eighteen hundred and fifty-three, by and between Isaac Drake McDowell of the county of St. Louis and State of Missouri, party of the first part, and Hamilton R. Gamble, chief justice of the Supreme Court of the State of Missouri, Luther M. Kennett mayor of the city of St. Louis, and Edward C. Blackburn, president of the board of aldermen of the council of said city, and their successors in office, respectively, parties of the second part, and Joseph N. McDowell, Amanda V. McDowell and Anna W. McDowell, parties of the third part, witnesseth: that the party of the first part, for and in consideration of the sum of one dollar to him in hand paid by the parties of the second part, and in the further consideration of the love and affection which he bears to his father, the aforesaid Joseph N. McDowell, and to his mother, the aforesaid Amanda V. McDowell, and to his sister, the aforesaid Anna W. McDowell, hath this day granted, bargained and sold, and by these presents does grant, bargain and sell, unto the said parties of the second part, and their successors in office, the following lot or parcel of land lying and being in the city and county of St. Louis and State of Missouri, and bounded and described as follows, to-wit: Beginning at a point fifty feet north of the intersection of Gratiot and Eighth streets in the city of St. Louis, and running thence one hundred and fifty feet north to the property owned by the Christian Brothers, thence west eighty feet to Dillon's line, thence south one hundred and fifty feet to the property this day conveyed by Isaac Drake McDowell to Amanda V. McDowell and Anna W. McDowell, and thence eighty feet to the beginning, containing in all twelve thousand square feet, upon which is situated the medical department of the University of the State of Missouri, and the museum thereto attached, commonly known and called 'McDowell's College' and 'McDowell's Museum.' The said land being a portion of part of a lot of ground, conveyed by a certain deed recorded in book O6, page 33, in the recorder's office of the county of St. Louis, dated June --, in the year eighteen hundred and fifty-two, wherein Isaac Drake McDowell, the party of the first part, is grantee, and Frederick W. Beckwith, administrator of the estate of Thomas S. Smith, is grantor. To have and to hold the said land with all and singular the privileges and appurtenances thereunto belonging unto the said parties of the second part, unto them and their successors in office forever. In trust, nevertheless, for the following purposes: The said parties of the second part 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 the case of the death of the said Amanda V. McDowell, the trustees aforesaid shall hold the 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 may deem fit, by and with the advice and consent of the said Isaac Drake McDowell, and in case of the death of the 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."

Joseph N. McDowell, the father, and Amanda V. McDowell, the mother departed this life prior to August 23, 1866, leaving surviving them the following children of the joint bodies of the said Joseph N. and Amanda V. McDowell, to-wit: John J. McDowell, Charles N. McDowell, Anna W. McDowell, and said Isaac Drake McDowell.

On the day last named the said John J. McDowell, Charles N. McDowell and Anna W. McDowell executed and delivered to Isaac Drake McDowell a deed, of which the following is a copy:

"Know all men by these presents that whereas, Isaac D. McDowell, of the city and county of St. Louis and State of Missouri, did execute and convey by a certain deed (which will appear on the records for St. Louis county) to the State of Missouri a certain piece of ground known and being as the property on which the McDowell Medical College is built and situated and being in the city and county of St. Louis and State of Missouri. In trust, however, for the benefit of John J McDowell, Charles N. McDowell and Anna W. McDowell. Now, whereas, the State has not or never has accepted or complied with said trust of said deed. Therefore we, the said John J. McDowell, Charles N. McDowell, and Anna W. McDowell, having arrived at full age and discretion, do hereby for the sum of five dollars to us each in hand paid by the said Isaac D. McDowell, the receipt of which is hereby acknowledged, do hereby grant, sell, convey, release and forever quitclaim all rights, titles and claims singly and severally to the said Isaac D. McDowell, his heirs and assigns forever, and that we, the said John J. McDowell, Charles N. McDowell and Anna W. McDowell, our heirs and assigns, do forever warrant and defend unto the said Isaac D. McDowell, his heirs and assigns, the title to said premises so that neither we, the said John J. McDowell, Charles N. McDowell and Anna W. McDowell, nor our...