Tesson v. Newman

• Citation: 62 Mo. 198
• Parties: LUCIA TESSON, et al., Defendants in Error, v. SOCRATES NEWMAN, Plaintiff in Error.
• Decision Date: 31 January 1876
• Court: Missouri Supreme Court

62 Mo. 198

LUCIA TESSON, et al., Defendants in Error,

v.SOCRATES NEWMAN, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to St. Louis Circuit Court.

Samuel Reber, for Plaintiff in Error.

Evans Casselberry, for Defendants in Error.

WAGNER, Judge, delivered the opinion of the court.

Plaintiffs state in their petition, that on the 29th of December, 1852, Victorine B. Tesson, being the owner in fee simple and in possession of a larger lot of land, of which the lot in controversy forms a part, conveyed the same to certain trustees and to the survivor of them in trust for the sole and exclusive use and benefit of the plaintiffs, Lucia and Coralie, and their heirs and assigns forever, free from the management or control of any husband they then or thereafter might have. A copy of the deed forms a part of the record in this case, and in it there is a provision that, at the time of the death of the said Lucia and Coralie, the trust therein created should cease and terminate, and that all of the legal and equitable estate in and to the said land should go to and vest absolutely in fee simple in the heirs of said Lucia and Coralie and their heirs and assigns forever.

The petition avers that on the 10th day of December, 1874, the plaintiffs, for the sum of two hundred and fifty dollars, bargained and sold, in fee simple and in full property, the lot in controversy, and executed and acknowledged a deed in due form, conveying to defendant and to his heirs and assigns forever, in fee simple absolute, and tendered the same to the defendant, and demanded the two hundred and fifty dollars in payment thereof, but that defendant refused to accept the deed and pay the money according to the contract, for which reason judgment was prayed.

Defendant in his answer admitted all the statements set forth in the petition, but denied that the deed from Victorine B. Tesson vested any more than a mere life estate in the plaintiffs, Lucia and Coralie; and that the fee simple was vested in their heirs, subject to their life estate, and therefore the said Lucia and Coralie were incapable of complying with their agreement and making a good title to the defendant.

To this answer there was a demurrer, on the ground that the deed from Victorine B. Tesson, of December 29, 1852, vested the absolute title in Lucia and Coralie, and authorized them to convey the fee. The court sustained the demurrer, and the defendant refusing to further answer, final judgment was given for the plaintiffs.

The case of Roberts vs. Moseley (51 Mo., 282), which has been cited in this court, has no bearing upon the question. In that case Mrs. Moseley, the cestui que trust or beneficiary in the deed, made no attempt to dispose of the property in her lifetime, and when she died it descended to her heirs, and the effort was to dispossess them, not on account of any act of hers, but in consequence of a conveyance from another party.

The main reason advanced, and the only reason that can be urged in support of the action of the court below is, that the rule in Shelley's case (1 Co., 104), is still the law of this State. If this be true, then the judgment is correct. In Shelley's case the rule was stated to be, “that when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase.” Mr. Preston, in his essay upon the rule, gives the following definition of it, which has been pronounced by high...