Wood v. Kice

• Decision Date: 24 February 1891
• Citation: 15 S.W. 623
• Parties: WOOD v. KICE et al.
• Court: Missouri Supreme Court

15 S.W. 623

WOOD v. KICE et al.

Supreme Court of Missouri, Division No. 2.

February 24, 1891.

TRUST-ESTATE — NATURE — POWER TO MORTGAGE.

1. A deed executed for a valuable consideration conveyed lands in trust for the sole and separate use of A. and the heirs of her body, with remainder in fee to her husband, if he should survive her and she should die without leaving issue. Held, that under such deed A. took an equitable estate in fee-tail, which was cut down to a life-estate in her by Rev. St. Mo. 1889, § 8836.

2. In view of the fact that such deed was upon valuable consideration, and was not a gift, a clause therein providing that the trustee, at the request of A. and her heirs, may sell the estate conveyed, and hold the proceeds in trust in like manner, does not exclude the power to mortgage for the benefit of the cestuis que trustent.

3. A mortgage executed by the trustee, and A. and her husband, while it cannot affect the interests of the heirs of A.'s body, is binding on her life-estate and on her husband's contingent remainder in fee.

Appeal from circuit court, Ray county; JAMES M. SANDUSKY, Judge.

George W. Lavelock, T. N. Lavelock, and C.T. Garner & Son, for appellants. Ball & Hamilton, for respondent.

THOMAS, J.

The questions to be determined on this appeal grow out of the construction to be given to the following deed: "Deed in Trust. This deed, made and entered into by and between John C. Cates and Rutha Cates, his wife, of the first part, and Joseph S. Hughes, trustee, of the second part, and Joella Kice and the heirs of her body, of the third part, all of the county of Ray, in the state of Missouri, witnesseth, that the said party of the first part, for and in consideration of the sum of seven hundred dollars, to them in hand paid by said party of the second part, as trustee as aforesaid, the receipt whereof is hereby acknowledged, have given, granted, bargained, and sold to said party of the second part, as trustee as aforesaid, for the sole and exclusive use and benefit of said party of third part, and to the heirs of her body, and to his successors, heirs, and assigns, forever, the following real estate, situate in the southern addition to the city of Richmond, in the county of Ray, in the state of Missouri, and known and designated on the plat of said southern addition aforesaid as lots numbered one and two, to have and to hold the same, with the appurtenances thereto belonging, unto him, the said party of the second part, as trustee as aforesaid, for the uses, trusts, and purposes aforesaid, and to his successors, heirs, and assigns, forever; the said party of the first part hereby covenanting and agreeing to and with the said party of the second part, as trustee as aforesaid, the title to said real estate, and any part thereof, against the claim or claims of all persons whomsoever, they will warrant and forever defend firmly by these presents; and it is further understood and agreed that the said party of the second part, as trustee as aforesaid, shall, whenever required by the said party of the third part, in writing, proceed to sell said real estate upon such terms as he may think proper, and shall receive the proceeds of such sale, and hold the same in trust, in like manner, and in like effect, as said real estate, and shall, whenever required in writing by said party of the third part, reinvest the proceeds of such sale, in such manner and in such property as may be directed by said party of the third part, and in like manner, and with like effect, uses, and purposes, shall hold such property or effects, in which such reinvestment shall be made, as herein provided; and it is further expressly agreed, and this conveyance is made upon condition, that, in the event the said Joella Kice, party of the third part, shall depart this life without children or heirs of her body, then, and in such event, thence in such case the property herein aforesaid shall invest in and become the absolute property of her present husband, Robert B. Kice, if he shall survive her death, and then be living and in being. The said party of the second part hereby covenants that he will faithfully discharge and perform the duties and obligations resting upon him as such trustee, as aforesaid, in the aforegoing deed. In testimony whereof the said parties of the first and second parts have hereunto subscribed their names and affixed their seals on this, the 3d day of June, A. D. 1865. JOHN C. CATES. [Seal.] RUTHA C. CATES. [Seal.]"

On the 17th day of May, 1871, Joella Kice, Robert B. Kice, and Joseph S. Hughes, trustee of Joella Kice, executed and delivered to Julia L. Temple a promissory note for $600, and to secure this sum they executed and delivered to said Temple a mortgage upon the property described in the foregoing deed, they signing and acknowledging the mortgage in proper form by the names given above. On the 18th day of June, 1880, the said Julia L. Temple assigned and delivered said note and mortgage to the plaintiff, and he brought this action to foreclose the mortgage. Defendants filed a demurrer to the petition, which being overruled, they filed answers, and set up as a defense that the parties had no power to give the mortgage, and that no interest passed by it. The case was tried by the court, and judgment was rendered granting plaintiff the relief prayed for in his petition, and defendants appealed to this court.

We will not notice the objections to the petition presented by the demurrer, for, if valid at all, they were waived by answering over and going to trial on the merits. It is contended by appellants that the deed by which they held the property did not authorize and empower them to mortgage it; that the only power they had under the deed was to sell the property, and reinvest the proceeds of the sale in other property, to be held by the trustee on the same conditions. On the other hand, appellee insists that these parties had power to mortgage the property in fee. The deed of Cates and wife conveyed this property to Joseph S. Hughes, to hold it in trust for the sole and separate use of Joella Kice and the heirs of her body, with remainder in fee-simple to her husband, Robert B. Kice, if he should survive her, and she should die without leaving heirs of her body. By the terms of the deed, Joella Kice took what, under the common-law and equity jurisprudence, would have been an equitable estate in fee-tail, (2 Washb. Real Prop., 5th Ed., 530; Farrar v. Christy's Adm'r, 24 Mo. 453;) and, being such, it is cut down to a life-estate in her by section 8836, Rev. St. 1889, (Farrar v. Christy's Adm'r, supra; Harbison v. Swan, 58 Mo. 147; Thompson v. Craig, 64 Mo. 312.) So we find that the effect of this conveyance is to give Joella a life-estate to her sole and separate use, and to the heirs of her body a fee, and, if she die without heirs of her body, to her husband in fee, if he survive her. Whatever estate the husband took under this deed is by its terms freed from the operation of the trust when it shall become vested in law and in possession.

Having determined the extent of the estate held by appellants, let us next inquire whether they were authorized by the said deed to mortgage any estate in the property. We hold that they had power to mortgage the life-estate of Joella and the contingent estate of the husband. If Joella should die without heirs of her body, leaving her hubsand surviving her, the grantee, under a foreclosure of the mortgage in this case, will take the fee that would, but for his execution of this mortgage and foreclosure, have vested in him. Section 8835, Rev. St. 1889; 2 Washb. Real Prop. (5th Ed.) 611. We will now give our reasons for holding that these parties had power to convey, and did convey, the life-estate of Joella and the estate of her husband in the property in dispute.

1. The deed of Cates and wife vests in Hughes title to the property described therein, to be held by him in trust for the purposes before specified. It then contains this provision: "And it is further understood and agreed that the said...