Watson v. Priest

• Decision Date: 22 June 1880
• Citation: 9 Mo.App. 263
• Parties: JOHN A. WATSON, Appellant, v. JOHN G. PRIEST ET AL., Respondents.
• Court: Missouri Court of Appeals

9 Mo.App. 263

JOHN A. WATSON, Appellant,

v.JOHN G. PRIEST ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 22, 1880.

1. Where an heir conveys all his “right, title, and interest” in the estate of his ancestor, this conveyance will cover his undivided interest in lands afterwards decreed to belong to his ancestor, but concerning which it was believed at the time of the conveyance that no title existed in the grantor or his ancestor.

2. Where a tenant in common executes a mortgage of his undivided interest in the land to one of his co-tenants, and all the tenants become parties to a partition suit, in which no mention is made of the mortgage, after partition is had the mortgage may be foreclosed and enforced against the lot set apart to the mortgageor.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Reversed and remanded.

H. A. CLOVER, for the appellant: A judgment in partition establishes the title to the land which is the subject of partition, and is conclusive upon all the parties to the record, and those claiming under them by title acquired subsequent to the commencement of the partition suit.-- Forder v. Davis, 38 Mo. 107. The petition must show in plaintiff a legal title to the premises sought to be divided.-- McCabe v. Hunter, 7 Mo. 355. The interest of all the claimants should be alleged and proven.-- Millington v. Millington, 7 Mo. 446. A party to a partition suit must assert any claim he may have for improvements, in such suit; he cannot afterwards sue for their value.-- Spitt v. Wells, 18 Mo. 468. In a suit for partition of land, the trustee and cestui que trust in a deed of trust covering part of the premises are properly made parties for the purpose of binding their interest, although no relief be prayed against them.-- Alexander v. Warrance, 17 Mo. 228; Reinhardt v. Wendeck, 40 Mo. 577; Farrar v. Christy's Administrator, 33 Mo. 56. The whole title must be conveyed by the judgment in partition.-- Owsley v. Smith, 14 Mo. 153; Fulbright v. Canefox, 30 Mo. 425 Estoppel: equitable and by acts in pais.--Herman on Estop. 419; Sanderson v. Ballance, 2 Jones Eq. 323; Ryder v. Rubber Co., 4 Bosw. 169; McCormick v. McMurtrie, 4 Wall. 192; Carr v. Wallace, 7 Wall. 394; Garner v. Bird, 57 Barb. 277; 14 Serg. & R. 27; Moody v. Van Dyke, 4 Binn. 31; Bell v. Harris, 10 Serg. & R. 43. John A. Watson, after the partition, was no longer a joint tenant with the other heirs of R. D. Watson.--1 Eq. Cas. Abr. 355; 2 Id. 522; 4 Serg. & R. 244; 2 Atk. 83; 3 Atk. 692; 2 Rawle, 92, 326.

ARBA N. CRANE, for the respondents: The Bakewell deed of trust covers all the interest of Felton P. Watson in the estate of his deceased father, Ringrose D. Watson, in St. Louis County.-- Lackland v. Nevins, 3 Mo. App. 335; Means v. Lavergne, 50 Mo. 343; Jackson v. Delancy, 11 Johns. 365; Menkins v. Blumenthal, 27 Mo. 198. And may be foreclosed against the lot set apart to the mortgageor in the partition suit.-- Hull v. Lyon, 27 Mo. 570. The Statute of Limitations has no application here, because we seek to enforce the security. This we may do so long as the security is available, it being clearly proved that the notes have not been in fact paid.-- Chouteau v. Burlando, 20 Mo. 482; Cape Girardeau v. Harbison, 58 Mo. 90; Wiswell v. Baxter, 20 Wis. 680.

LEWIS, P. J., delivered the opinion of the court.

This is a voluminous record, containing a vast amount of testimony, documentary and oral, relating chiefly to the original title of the land involved in the controversy. Out of the complications in which the history of this title abounds, and the transactions of more recent date which help to swell the record, there seem to arise at last but two vital questions, whose solution must determine the rights of the parties: 1. Where one conveys “all the right, title, and interest” of the grantor in the estate of his deceased father, will the conveyance cover an undivided interest in the lands, concerning which it is doubted, at the time of the conveyance, that the ancestor held any title,--or even generally believed that he had none,--but which lands are afterwards, by a series of adjudications, determined to have belonged to the ancestor? 2. Where one of several tenants in common is the beneficiary in a deed of trust in the nature of a mortgage executed by one of his co-tenants upon his undivided interest in the land, and all the tenants become parties to a partition suit, in which no mention is made of the trust conveyance, can the cestui que trust, after judgment and actual partition of the land, cause his trust-deed to be foreclosed and enforced against the lot set apart to the maker of the deed?

In the elaborate briefs presented by the counsel on both sides, numerous other questions are discussed with much learning and ability; but all of them are merely subordinate, and it is believed that the most careful solutions of them could do no more than point the way to a proper determination of the two principal questions just stated.

The first of these must be answered in the affirmative. By Wagner's Statutes, p. 272, sect. 1, “conveyances of land, or of any estate or interest therein, may be made by deed executed by any person having authority to convey the same,” etc. This comprehensive provision does away with many of the common-law refinements and distinctions about the transferable interests in land.

One might have an interest in real estate, such as a contingent remainder, and yet could not in former times alienate it, because it constituted no estate in the land. But the policy of our statute, not regarding the inquiry whether there is or is not an estate to convey, simply places the transferee in the condition of the transferor as to any interest or right that might be claimed by the latter concerning the land to which the conveyance refers. There may, of course, be modifications upon the face of the deed, or such as will arise upon matters of notice, etc.; but no mere fact of remoteness, contingency, or uncertainty of ultimate enjoyment will render a conveyance ineffectual if there be a present vested interest in the grantor which he might now or hereafter call upon the courts to protect. It can be of no conseqence whether or not the grantor is acquainted with the full extent of his rightful claim. If, after describing specific lands or titles he superadds a sweeping conveyance of all his interest in other lands or titles not described, that fact of itself implies that there may be other such lands or titles unknown to him, or at least not described, and which he yet intends to convey. Such is the case in the present instance. The deed of trust executed by defendant Felton P. Watson, whose foreclosure the plaintiff seeks to prevent, adds to a lengthy description of lands conveyed, and which were derived chiefly, if not wholly, from the estate of the grantor's deceased father, the words, “and also all the right, title, and interest of said Felton P. Watson in the estate of his deceased father, Ringrose D. Watson.” Plaintiff undertakes to exclude the land in controversy from this sweeping clause, because when it was written the state of the title, or the supposed absence of title, was such that it could not have been in contemplation of the parties. It may be true that this particular property or estate was not present in their minds. But it is equally true that the conveyance was so framed as to include not only what was present and certain, but also what later events or disclosures might render certain, as an estate or interest to be derived by the grantor from the estate of his deceased father. It is not pretended that the property in controversy came to Felton P....