Thompson v. Lyon

• Citation: 33 Mo. 219
• Parties: WM. J. THOMPSON AND WIFE, Plaintiffs in Error, v. WM. M. LYON et al., Defendants in Error.
• Decision Date: 31 October 1862
• Court: Missouri Supreme Court

33 Mo. 219

WM. J. THOMPSON AND WIFE, Plaintiffs in Error,

v.WM. M. LYON et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1862.

Error to St. Louis Court of Common Pleas.

This case was before the court in 20 Mo. 155. After the remanding of the cause, the plaintiffs amended their petition, setting forth the respective titles of plaintiffs and defendants, but asked judgment simply for the possession of the premises, thus making the action an ejectment.

At the close of plaintiff's case the cause was submitted to the court, and, upon the evidence, the court made the following finding:

The court finds that on the second day of July, 1829, Charles Collins and wife, for the consideration therein mentioned, executed, acknowledged and delivered to Wm. P. Foster, the deed, etc., to have and to hold the above granted, bargained, sold and conveyed premises, with the appurtenances, unto the said William P. Foster, his heirs and assigns forever; in trust, however, for the sole and separate use of Virginia W. Wetherell, and no other: Provided, however, that it shall and may be lawful to and for the said William P. Foster, the trustee aforesaid, at any time hereafter, upon the request of the said Virginia W. Wetherell, to release, assign and convey the whole or any part of the premises herein described to such person or persons as she shall designate or appoint, and to such use or uses as she shall or may think fit and expedient; and the said Charles Collins and Adeline Collins, for themselves, their heirs, executors and administrators, hereby covenant and agree, &c. Recorded 3d August, 1829.

The court further finds, that the said Virginia W. Wetherell mentioned in said deed is one of the plaintiffs, and was the daughter of said Wm. P. Foster, and that at the date of said deed she was the wife of John Wetherell. The court further finds that said John Wetherell died, and that afterwards, in the year 1834, the said Virginia W. intermarried with the plaintiff, William J. Thompson, and ever since has been and now is his wife.

The court further finds that on the 7th day of June, 1831, the said William P. Foster and Virginia W. Wetherell, for the consideration therein mentioned, executed, acknowledged and delivered to Russell Hubbard the following deed, to wit:

“This indenture, made this seventh day of June, in the year 1831, between William P. Foster, trustee of Virginia W. Wetherell, and Virginia W. Wetherell, of the first part, and Russell Hubbard, of the second part, all of the city of St. Louis and State of Missouri, witnesseth, that the said William P. Foster, trustee, and Virginia W. Wetherell, for and in consideration of the sum of $132.53, lawful money in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell and convey unto the said Russell Hubbard, his heirs and assigns, two certain pieces or parcels of land, etc., to have and to hold the above granted, bargained, sold and conveyed premises, with the appurtenances, unto the said Russell Hubbard, his heirs and assigns forever. In testimony whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written. William P. Foster, [L. S.] Virginia W. Wetherell, [L. S.] Signed, sealed and delivered in presence of ____.

We acknowledge the receipt of the above one hundred and thirty-two dollars and fifty-three cents. William P. Foster. Virginia W. Wetherell.

State of Missouri, County of St. Louis, ss.--Be it remembered, that on the day of the date hereof, before the undersigned, a justice of the peace within and for the county aforesaid, personally appeared William P. Foster and Virginia W. Wetherell, who are personally known to the said justice to be the persons whose names are subscribed to the foregoing deed or instrument of writing, as having executed the same, and acknowledged such deed or instrument of writing to be their act and deed for the purposes therein mentioned. Given under my hand this 8th day of June, 1831. Jos. Garnier, J. P. (Recorded March 10, 1832.)”

The court further finds that at the time of the execution and delivery of the last mentioned deed, the said Virginia W. Wetherell was an infant somewhere near but not over seventeen years of age. The court further finds that the defendants by various mesne conveyances obtained and now hold all the estate conveyed to said Russell Hubbard by the said deed of the 7th of June, 1831; that said defendants hold possession and claim title to the premises described in the said deeds of Collins and wife and of said Foster and Virginia W. under the said deeds; that said premises are the same described in the plaintiffs' amended petition, and that defendants were in possession of the said premises at the commencement of this suit.

Upon the foregoing facts as found the court declares and decides as matter of law, that the plaintiffs are neither entitled to recover the possession of the premises sued for, nor damages for the detention thereof, nor for the rents and profits thereof, and that judgment ought to be given for the defendants; the court being of opinion, and deciding, that said deed from said Foster and Virginia W. was effectual to pass the legal estate in the said premises to the said Russell Hubbard notwithstanding the said Virginia W. was a minor at the time of its execution, and that said legal estate is now vested in the defendants. And the court is further of opinion that the plaintiffs cannot recover the possession of said premises from the defendants as long as the said legal estate is outstanding against them. The court does not find whether or not the defendants and those under whom they claim title to the said premises had notice at and before the times they received their respective conveyances of the said premises, of the fact that the said Virginia W. was an infant at the time of the execution of said deed to said Russell Hubbard, the court considering that fact immaterial as the pleadings in the case now stand.

The plaintiffs filed their motion for review, making their case as follows:

The plaintiffs, in making their case, state that, besides the evidence embodied in the finding of the court, to wit, the deed from Collins and wife to Foster, and the deed from Foster and the said Virginia W. to Russell Hubbard, and besides the facts found by the court, evidence was given on the part of the plaintiffs tending to prove that the consideration money paid for the conveyance from Collins and wife to Foster was paid out of funds properly belonging to the said Virginia W.; and tending to prove the value of the premises sued for, and the monthly value thereof for five years next before the commencement of this suit, and down to the time of trial; and tending to prove that the said W. P. Foster died in 1833, and that the said Virginia is his daughter; and tending to prove that the defendants, and those under whom they claim title to the said premises, had notice, at and before the times they received their respective conveyances of the said premises, of the fact that the said Virginia W. was an infant at the time of the execution of the said deed to Russell Hubbard; and tending to prove that the said Virginia did not request, but was opposed to the conveyance of said land to said Hubbard. That no testimony was given on the part of the defendants.

At the close of the testimony on the part of the plaintiffs, the said plaintiffs by counsel moved the court to decide and declare the following propositions of law as applicable to the case:

1. The deed from Charles Collins and wife to Wm. P. Foster is operative by its terms to convey to the said Foster all the title of Charles Collins, the grantor, in and to the land described therein as granted, bargained and sold, to be held by the said Foster, or disposed of by him only as a trustee and according to the terms of the deed.

2. By virtue of the said deed the said Virginia, the cestui q'use, had a right to take the rents and profits of the estate conveyed by said deed, and to possess and use the land.

3. The deed from Wm. P. Foster and Virginia W. Wetherell to Russell Hubbard, as given in evidence, as a conveyance from the said Foster to the said Hubbard, is inoperative to destroy or diminish the right of the said Virginia in and to the said land unless it appear that the said deed was made by said Foster at the request of the said Virginia and according to the terms of the deed of trust from Collins to Foster.

4. That said Hubbard, and all who claim title through him under the said deed from Collins to Foster, are affected with notice of the contents and terms of said deed and are bound thereby.

5. The said deed to Hubbard, as a conveyance from said Virginia, was not binding upon her if she were an infant when it was made, and her right to disaffirm the said deed does not depend upon the fact whether or not these defendants, or any through whom they claim, had knowledge or notice of her infancy when or before they acquired title.

But the court declined to pass upon the said propositions of law at that time, and upon a subsequent day the court caused to be filed its finding of facts and conclusions of law therein as the same is here of record. The plaintiffs pray for a review and new trial of the cause, and in support of their prayer they respectfully suggest that the finding of the facts by the court is insufficient and incomplete, not being co-extensive with the allegations of the parties in their pleadings, nor with the testimony as given by the plaintiff.

And that the conclusion of law drawn from the facts as found is erroneous. It is erroneous in several particulars, and especially in assuming that the plaintiff cannot in law have a right to recover the possession of the land, because the legal title to the fee simple is outstanding.

Edward Bates, for plaintiff in error.

I. The legal effect of the deed from...