Youngblood v. Vastine

• Decision Date: 31 March 1870
• Citation: 46 Mo. 239
• Parties: JAMES M. YOUNGBLOOD, ADMINISTRATOR OF JOSEPH TULEY, Appellant, v. JOSEPH P. VASTINE, ADMINISTRATOR OF SARAH D. WRIGHT; D. ROBERT BARCLAY, TRUSTEE OF ANN A. MACDONALD et al., Respondents.
• Court: Missouri Supreme Court

46 Mo. 239

JAMES M. YOUNGBLOOD, ADMINISTRATOR OF JOSEPH TULEY, Appellant,

v.JOSEPH P. VASTINE, ADMINISTRATOR OF SARAH D. WRIGHT; D. ROBERT BARCLAY, TRUSTEE OF ANN A. MACDONALD et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Garesche, for appellant.

The heirs had no other title than they inherited, and that was what the ancestor had when he died, which was nothing, because he had conveyed. (Caldwell v. Head, 17 Mo. 561; McCamant v. Patterson, 39 Mo. 110; Hancock v. Beverly's Heirs, 6 B. Monr. 532; Hill v. Meeker, 24 Conn. 214.)

Ewing & Holliday, for respondents.

The deed of trust not being recorded when the defendant Barclay purchased the property from the heirs of Mrs. Wright, four years after Mrs. Wright's death, and the deed from the heirs to Barclay having been recorded several months before said deed of trust, by our registry laws the deed to Barclay must prevail. (Tucker v. Harris, 13 Ga. 1, and cases cited; McCulloch's Lessee v. Eudaly, 3 Yerg. 346; Powers v. McFarren, 2 Serg. & R. 44; Kennedy v. Northrup, 15 Ill. 148; dissenting opinion in Hill v. Meeker, 24 Conn. 211; 15 Ill. 148; R. C. 1855, p. 364, § 42; Gen. Stat. 1865, p. 447, § 26.)

BLISS, Judge, delivered the opinion of the court.

Sarah G. Wright, deceased, by herself and her trustee, on the 20th day of July, 1859, executed to E. J. Xaupi, in trust, to secure the payment of a promissory note of same date for $3700, given to Joseph Tuley, then living, a deed of certain real estate, her separate property, situate on the corner of Pine and Eighth streets, in St. Louis, which deed was not put upon record until the 19th of October, 1866. The said Joseph Tuley and Sarah G. Wright died in 1860 and 1861, and on the first of October, 1865, D. Robert Barclay, as trustee for Mrs. Ann A. Macdonald, and with her funds, purchased said property of the heirs of said Sarah G. Wright, and received a warranty deed of the same, which was recorded April 28, 1866. It appears from the evidence that neither Barclay nor Mrs. Macdonald had any knowledge of the trust deed to Xaupi; that the records were examined before the purchase to see if there were any encumbrances upon the property; that a full consideration was paid for it; that the estate of Mrs. Wright had been settled by the public administrator, and that all debts presented had been paid, but this note was not among them.

This suit was brought by the administrator of Tuley to fore close his trust deed, and the contest arises in consequence of the failure on the part of Xaupi, to whom it was made, to place it upon record. Had the second deed been executed by Mrs. Wright while living, there would be no question that it would hold against the unrecorded deed. But in some of the reported cases upon the subject it is held that the same preference can not be given to the second deed if made by the heirs of the first grantor. I confess I am not struck with the force of the reasoning upon which the distinction is made, for it is based upon the idea that the second deed is inoperative because nothing descended to the heirs, and hence they had nothing to convey. If that be so, it was because nothing was left in the ancestor that could descend; that his whole estate was divested by the first deed. If his whole estate was so divested, how could a second deed, if made by himself, be operative? Yet it is not disputed that such second deed would convey the estate, notwithstanding the first.

Yet the distinction is made by some of our most respectable courts, and it is apparently recognized by this court. In Hill et al. v. Meeker, 24 Conn. 211, the majority of the court held that the unrecorded deed from the ancestor so divested him of his title that his son and heir “took nothing by inheritance that he could convey or mortgage to a bona fide purchaser who had no knowledge of the deeds.” The case is a much harder one than the one at bar, and the decision is based upon “a clear distinction between a purchaser from him (the ancestor) and one from his heir, Arza. In relation to a purchase from Arza, the difficulty is that he never had any title.”

The same distinction was made in Hancock v. Beverly's Heirs, in 6 B. Monr., Ky., 531. The judge delivering the opinion acknowledges the question to be a doubtful and difficult one, and in reasoning upon the subject says: “It has always been held that a deed, though never recorded, is good between the parties, and as to all the world, except creditors and innocent purchasers for value. The grantor in such deed can pass no title to his subsequent donee or devisee,...