Weinreich v. Al

• Decision Date: 09 June 1885
• Citation: 18 Mo.App. 364
• Parties: A. W. WEINREICH, Appellant, v. L. WEINREICH ET. AL., Respondents.
• Court: Missouri Court of Appeals

18 Mo.App. 364

A. W. WEINREICH, Appellant,

v.L. WEINREICH ET. AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 9, 1885.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Reversed and remanded.

B. SCHNURMACHER, for the appellant.

The words in the deed created a condition subsequent upon the performance of which the estate conveyed would be enlarged. For a failure to perform this condition during his life-time, the grantor, or after his death, his heirs, had a right to re-enter and declare a forfeiture. 1 Washburn *451; Messersmith v. Messersmith, 22 Mo. 369. Nothing appears upon the records to show, what plaintiff alleges to be a fact, that the condition was satisfied by a subsequent gift of other property to John Henry, and a settlement of the father's estate upon this basis. It requires extrinsic evidence to show this, and consequently there is a cloud upon the record title. Clark v. Covenant Mutual Life Insurance Co., 52 Mo. 272.KLEIN & FISSE, for the respondent.

A condition subsequent, if it has any effect, defeats an estate already vested. 2 Washburn *447; 4 Kent, Com. *125. Accordingly, as conditions subsequent are operative only to destroy or defeat estates, courts apply a very strict construction to them, and they seem to be held in much the same abhorrence as forfeitures. 4 Kent Com. (11th Ed.) *129; Rawson v. Inhabitants of School District No. 5, 7 Allen 125; Labaree v. Carleton, 53 Me. 211; Emerson v. Simpson, 43 N. H. 475, 477; Southard v. Central R. R. Co., 26 N. J. L. 13; Ludlow v. N. Y. & C. R. R. 12 Barb. (N. Y.) 440, 442-4. The provision is in the nature of a mortgage, and the law is now clearly settled, that whatever be the form of the mortgage, it will be part of the personal estate of the mortgagee. 1 Williams on Executors (6th Am. Ed.) top p. 760, bottom p. 687. We conclude, therefore, that the provision in question is not a condition but an implied covenant in favor of John Henry Weinreich, which upon his death passed to his personal representative. Rouggley v. Teichmann, 10 Mo. App. 257.

THOMPSON, J. delivered the opinion of the court.

The question for decision in this case is presented by a demurrer to the following petition:

Plaintiff respectfully shows to the court that he is the son of Andreas Weinreich, late of St. Louis county, deceased, who left two sons surviving him, to-wit, this plaintiff, and his brother, John Henry Weinreich, now also deceased. That defendant, Lena Weinreich, is the widow of said John Henry Weinreich, and said defendants, Frederick G., Robert I., and Emma Catharine Nellie, are minor children of said John Henry Weinreich, deceased. And plaintiff further shows to the court that during the life-time of his father, to-wit: on the 25th day of April, 1851, he, the said Andreas Weinreich, father of plaintiff, made a conveyance of a certain farm to plaintiff, situated in the county of St. Louis, state of Missouri, and which is described as follows:

A certain tract or parcel of land being the west half of the northwest quarter of section thirteen, township 43 north, range 6 east of the 5th principal meridian, and containing 80 acres.

That in the deed of conveyance, which is recorded in book D, No. 6, p. 276, of the recorder's office of the county (now city) of St. Louis, the considerations and conditions of said conveyance are stated to be as follows, to-wit:

“Subject, however, to, and in consideration of, the following conditions on the part of said A. W. Weinreich, viz.: the said A. W. Weinreich is to pay to his said parents the annual sum of fifty dollars, if demanded, during the life of the said Andreas Weinreich and D. E., his wife, and the life of the survivor of them, and that after the death of such survivor, the said A. W. Weinreich is to allow (in consideration of said property), the sum of fifteen hundred dollars to his brother, John Henry Weinreich, second son of said A. Weinreich and D. E., his wife, that is to say, so much less shall be taken by said A. W. Weinreich out of the family property, no deduction being made from said fifteen hundred dollars, on account of said annual payments of fifty dollars. And until all the provisions of this conveyance shall be complied with, and fulfilled, said A. W. Weinreich shall have no right to convey, dispose of, or encumber said premises.”

And plaintiff states that at the time of the execution of said deed the property thereby conveyed was in the nature of an advancement to plaintiff, and that in order to indemnify or equalize his other son, the said John Henry, the above provision for the payment of fifteen hundred dollars to him was inserted in said deed, but plaintiff states that thereafter his said father by deed, dated May 2, 1865, recorded in said recorder's office in book 298, p. 458, conveyed to plaintiff's brother, John Henry, as an advancement or gift, certain other real estate of equal or even greater value, consisting of a house and lot in the city of St. Louis, described as follows:

A certain parcel or lot of ground lying in Julia C. Soulard's second addition to the city of St. Louis, according to the plat thereof on file in the recorder's office of the county of St. Louis, beginning at a point in the western edge of Carondelet avenue, which is sixty feet southward of the northeastern corner of fractional block No. 57, in said addition; thence eastwardly at right angles with said avenue and with the centre of the division wall between the fourth and fifth tenements (of a row of stone buildings, containing six tenements in said block, said tenements being numbered from north to south, progressing 140 feet to an alley twenty feet wide, thence southwardly with the eastern line of said alley 14 feet 9 inches, thence at right angles with said last course, eastwardly along and with the centre of the division wall between the fifth and sixth tenements of said row 140 feet to the western edge of said avenue, 14 feet 9 inches to the point of beginning.

Also, a certain lot of ground being in Julia C. Soulard's second addition to the city of St. Louis, together with the two and one-half story stone tenement thereon, in fractional block No. 57, bounded and described as follows, to-wit: Beginning at a point in the western line of Carondelet avenue, 74 feet 8 4-8 inches southwardly of the northeast corner of said fractional block No. 57, thence westward at right angles with said Carondelet avenue, with and through the division wall between the fifth and sixth tenements of the stone house on said fractional block (beginning with No. 1, as the northern of said houses on Lafayette street, counting thence southwardly progressively) 140 feet to the eastern line of an alley 20 feet wide, thence southwardly at right angles with said east line, following the eastern line of said alley 15 feet 9 7-8 inches, thence eastwardly at right angles with said alley and with the south edge of the south wall of the sixth and last tenement in said stone house, 140 feet to the western edge of Carondelet avenue, thence with said western edge of Carondelet avenue 15 feet 9 4-8 inches, to the point of beginning.

And plaintiff says that the above conveyance was intended by deceased as an equalization, an indemnity in favor of John Henry, as against the said previous conveyance to this plaintiff and was intended as a satisfaction in full of said stipulation for the payment of said fifteen hundred dollars to him by this plaintiff. And the said conveyance and gift to John Henry was by him received and accepted in satisfaction of any claim he might have against plaintiff for said fifteen hundred dollars, and when their father died in the year 1868, the estate was settled upon the basis of such equalization of advancements and this plaintiff and his said brother shared equally in the rest and residue of their father's estate. That afterwards in the year 1874, plaintiff's brother also died, leaving a widow and children, the defendants in this case, as aforesaid.

And plaintiff says that although the mutual rights of plaintiff and his said brother were adjusted and settled as aforesaid, and both parties remained in the undisputed possession of their respective estates ever since, and no adverse claims have ever been made thereto, yet the clause in the conveyance to him of the property first above described operated as a cloud upon the title to said property, for the reason that nothing appears of record in discharge of the conditions in said conveyance set out, and plaintiff has been hindered and obstructed in a sale of the premises recently made, and the purchaser declines to pay the purchase money until said matters have been judicially established, and said property discharged from all claims of said John Henry Weinreich, and his heirs and representatives, wherefore plaintiff prays the court to declare the title to said premises first above described to be forever discharged from such claims, and that the same was vested in this plaintiff free from all claims and demands of the said John Henry Weinreich and the present defendants, his widow and heirs as aforesaid, and as in duty bound will ever pray. And plaintiff further prays that the court may appoint a guardian ad litem for the infant defendants in this case.

The grounds of demurrer to this petition were the following:

1st. Because it appears upon the face of the petition that it does not state facts sufficient to constitute a cause of action against these defendants.

2nd. Because it appears on the face of said petition, that there is a defect...