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every person or persons whomsoever clajm- of $1,000; also, the general warranty deed ing or to claim the same or any part there- of said Christian Halle, dated April 15, 1885, of.” Mrs. Cornwell made no disposition of conveying said real estate to defendant Etta the land during her life, either by deed or B. Orton for a consideration of $3,300. All will or other appointment. She died on the of which conveyances were duly recorded. 24th or 25th of December, 1860. Her hus- There was evidence, also, showing that the band died December 25, 1889. The plaintiffs notes secured by the deed of trust to McClelare all of her children and grandchildren. It lan, trustee for Yeats, were assigned to Exwas admitted that defendants were at the Gov. Polk; that money was borrowed by commencement of the suit, and now are, in James Cornwell of Hoffman to satisfy Gov. possession of the lands. Plaintiffs offered Polk's notes, and, when Hoffman's notes fell evidence as to value of rents, and rested. due, a new loan was made of Halle to satisDefendants offered and read in evidence a fy them. Halle's deed of trust was foredeed of trust from Catherine Cornwell and closed, and he purchased the land and afterJames Cornwell, her husband, and her trus- wards conveyed it by warranty deed to Mrs. tee, John A. Goodlett, to Robert A. Yeats' Orton. In rebuttal, plaintiffs proved by trustee, Josiah G. McClellan, dated October Ephraim Stannus that he had lived in the 15, 1859, conveying the real estate in ques- vicinity of the property for 30 years. He tion, to secure the payment of three promis- knew Mr. and Mrs. Cornwell both for a long sory notes for $793.10 each, with 6 per cent. time. He heard Mr. Cornwell state, at the interest from date, executed by James Corn- time of the sale of the 10 acres to Garriott, well, and payable to said Yeats or order, one, that Mrs. Cornwell's mother purchased the two, and three years from date, respectively, | property for her. The court found for dewith release on the margin by Trusten Polk, fendants, and plaintiffs appeal. No instrucdated March 5, 1870. Defendants also of- tions were asked or given. The grounds for fered and read in evidence deed of release | new trial were that the answer set up no from the said Josiah G. McClellan, trustee, equitable defense or basis for any evidence, and Joseph Sale, owner of the notes above whatever, and that the court erred in admitmentioned, dated June 30, 1867, releasing the ting irrelevant and incompetent evidence, north 10 acres of the tract from the lien of and that, upon the undisputed facts, the verthe last above named deed of trust, in con- dict should have been for plaintiffs. sideration of the payment of $1,000 thereon.

Bashaw & Isbell and E. A. Peacock, for Defendants offered, and read in evidence, pe

appellants. L. F. Parker and John W. Mctition and answer, and the decree of the St.

Elhinney, for respondents. Louis land court, at the March term, 1862, in the case of James Cornwell v. John A. Good

GANTT, P. J. (after stating the facts). 1. lett, said decree directing said Goodlett, as

The rights of the several parties depend uptrustee in the deed to Catherine Cornwell

on the construction to be given the deed from Yeats and wife, read in evidence by

from Yeats and wife to Goodlett, as trustee plaintiff, to convey the lands therein de

for Mrs. Cornwell. The plaintiffs assert that scribed to James Cornwell. Defendants tlien

this deed vested the fee-simple estate in offered, and read in evidence, the deed made

these lands in Mrs. Catherine Cornwell and by John A. Goodlett, trustee, etc., to James

that no effect can be given to the covenant of Cornwell, dated May 21, 1862, under the de

the trustee, Goodlett, to convey to James cree last above referred to, conveying to him Cornwell, should Mrs. Cornwell die without “all the estate, right, title, interest, property, making a will or directing some other dispoclaim, and demand of said Goodlett, as trus

sition of the land, whereas defendants claim tee." Defendants also read in evidence a

that the true contruction of the deed is that deed of trust from James Cornwell to Wil- it conveyed a life estate, only, to Mrs. Cornliam Hoffman's trustee, dated February 28, well, with power to convey the fee in re1870, for $3,000, with release on the margin by mainder to her husband, if she failed to exBernard J. Reilly, holder of the note, dated ercise her right. To enable us to arrive at May 24, 1873, upon the land in controversy. a proper determination of this difference, Defendants also offered, and read in evi- certain cardinal principles, which we have dence, deed of trust from James Cornwell to no right to disregard, must be kept in mind. James Clemens' trustee, Bernard J. Reilly, In the very nature of things, no remainder dated May 7, 1873, to secure the payment of can be limited after a fee simple. A grant ('ornwell's note to Clemens for $3,000, two of the fee simple conveys the whole, and years from date, together with four interest

there can remain no remnant for disposition. notes for $150 each, due in 6, 12, 18, and 24 2 Bl. Comm. 164; Fearne's Rem. 12; 2 months each, upon the real estate in contro- Co. Litt. 126, note; Green v. Sutton, 50 Mo. versy, and giving the usual power of sale up- 186. Again, the doctrine of courts of equity on default, and to make deed, etc.; also, is that equitable estates are considered, to trustee's deed by Bernard J. Reilly, above- all intents and purposes, as legal estates. named trustee, conveying said real estate to In the construction of the limitations of a Christian Halle, after alleged default, adver- trust, courts of equity follow the rules of tisement, and sale under said deed of trust, law applicable to legal estates. The cestui dated December 1, 1880, for the consideration que trust or beneficiary takes the same es

tate in duration as in a legal estate, and the estate granted is subject to the same incidents, properties, and consequences as belong to. similar estates at law. They are alienable, devisable, and descendible in the same manner. They are alike subject to dower and curtesy. It is true, at one time a widow was not dowable of a trust estate, but, both in England and in this country, a widow is now dowable in an equitable estate. As to curtesy, actual possession of the estate, or the receipt of the rents, issues, and profits, by the wife, or possession by her trustee for her benefit, is equivalent to legal seisin. These principles are elementary. 1 Perry, Trusts, $ 324; Lewin, Trusts, $ 622; 2 Story, Eq. Jur. $ 974; Co. Litt. 290b, Buttir's note 16; Cushing v. Blake, 30 N. J. Eq. 689; Trem. mel v. Kleibolt, 75 Mo. 255. It is well, perhaps, to note that a distinction is made between trusts executory and trusts executed. Says the author of Perry on Trusts (volume 1, $ 359): "All trusts are executory in one sense of the word; that is, the trustee must have some duty, either active or passive, to perform, so that the statute of uses shall not execute the estate in the cestui que trust, and leave nothing in the trustee. But such is not the meaning of judges when they speak of executed trusts and executory trusts. These words refer rather to the manner and perfection of their creation than to the action of the trustee in administering the property. Thus a trust created by a deed or will, so clear and definite in all its terms and limitations that a trustee has nothing to do but to carry out all the provisions of the instrument according to its letter, is called an executed trust. In these trusts, technical words receive their legal meaning, and the rule applicable to legal estates governs the equitable estates thus created." And when property is vested in one person in trust for another, and the nature of the trust is not prescribed by the donor, but left to the construction of the law, it is denominated a "dry or simple trust." In such a case, the beneficiary is entitled to the possession and enjoyment of the property, and has the right to alien or charge as he or she pleases, and to call upon the trustee to execute such conveyances of the legal estate as he or she may direct. There are also well-established rules of construction in ascertaining whether the estate granted to the first taker is an absolute fee simple or only an estate for life. "It has always been held that an absolute power of disposition over property conferred by will, not controlled by any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it." Rubey v. Barnett, 12 Mo. 5; Norcum V. D'Oench, 17 Mo. 98; Green v. Sutton, 50 Mo. 186; Tremmel v. Kleibolt, 75 Mo. 255.

After a most careful consideration, the

court of errors of New York, in Jackson v. Robbins, 16 Johns. 588, said: “We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases." Pulliam v. Byrd, 2 Strob. Eq. 142. Jackson v. Robbins was cited and approved by this court in Rubey v. Barnett and Green v. Sutton, supra, and the distinction therein made has never been questioned, save to the extent that, whereas, in Jackson V. Robbins, it was said that “where the testator gives to the first taker an estate for life only, by certain and express words," an estate in fee does not pass, this court, in Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52, held that it was not necessary that the life estate should be created in express terms, saying: "If it is the clear intention from the whole will that the first taker is to have but a life estate, then the added power of disposition will not convert the estate into one of absolute ownership." And see, also, Munro v. Collins, 95 Mo. 33, 7 S. W. 461; Harbison v. James, 90 Mo. 411, 2 S. W. 292; Redman v. Barger (Mo. Sup.) 24 S. W. 177. So that in no case in this state do we find the integrity of the rule shaken, save as to the words used in creating we life estate. Thus Brace, J., in commenting upon Wead v. Gray, 78 Mo. 59, in Munro v. Collins, page 36, 95 Mo., and page 463, 7 S. W., said: “Although the testatrix contemplated that the devisee might not exercise the absolute power which she gave over all the property devised to her, yet in terms, hav. ing made her its absolute owner, her power over her property could not be limited by a provision inconsistent with absolute ownership.” Wead v. Gray, 78 Mo. 59; State v. Tolson, 73 Mo. 320. In this latter case the provision in the will was: “I give and devise unto my beloved niece, M. S. P., all my estate not hereinbefore devised, to have and to hold and to enjoy to the only proper use and behoof of the said M. S. P. and her heirs forever." "The true intent and meaning of this devise is to give to the said M. S. P. all my estate, real, personal, and mixed:

provided, however, that it is my will and devise that, if the said M. S. P. shall die without issue, that then, in such event, the estate herein devised to her shall descend and go to W. and N.” This court held the limitation over void for repugnancy. It was an attempt to limit a remainder upon a fee. The cases will be found instructive, as showing that, while the rule is

settled, each case called for a construction held the wife took a fee and the husband his by the court as to its application, but in each curtesy, and the limitation over was void; case it was conceded that when the inten- a conclusion reached because, by the terms tion to create a life estate only in the first of the deed, the entire estate was vested in taker did not appear, either by express words the wife, and no remainder was or could be or by the clear intention from the whole in. created by the covenant of the trustee to strument, and the words were appropriate to convey the property to her legal heirs at convey an absolute estate to the first taker, her death, in default of appointment by her the limitation over, by remainder or other during her life. Appleton v. Rowley, L. R. wise, was void. With these principles of 8 Eq. Cas. 139; Cushing v. Blake, 30 N. J. law and decisions before us, let us examine | Eq. 689; Stowell v. Hastings, 59 Vt. 494, 8 this deed, and see if a life estate is created, Atl. 738. either in express words or by necessary im- 2. The judgment of the land court of St. plication from the terms of the deed, gath-Louis directing Goodlett, the trustee, to conered from "all of its corners." There are vey the lands to James Cornwell, in no way no words expressly creating a life estate, and estops the heirs of his wife. They were not omitting, for the present, the limitation over parties to that mandate. to the husband, certainly there cannot be 3. It is insisted by defendants that, even found in the adjudicated cases a more abso- though the legal title should be adjudged to lute and unrestricted power of disposal in a plaintiffs, still defendants have a good equifirst grantee or taker than was conferred up- table defense for subrogation to the rights on Mrs. Cornwell, and the trust was clearly of Yeats, because their grantors paid off the an executed dry trust. The duties devolved original deed of trust, which was binding on upon the trustee, Goodlett, were such, and Mrs. Cornwell. The notes secured by the such only, as the law would place upon him mortgage or deed of trust were all executed in their absence. In the devolution of es- by James Cornwell alone. That deed of trust tates, equity follows the law, and we ap- was never foreclosed. After Mrs. Cornwell's prehend no court would have denied Mr. death, James Cornwell borrowed other Cornwell, the husband, curtesy in these lands, moneys on his own note and deed of trust on upon the ground that the trust deed clearly said lands, and paid off the notes executed granted an estate of inheritance, nor can in lifetime of his wife. While the doctrine there be a doubt, under the statute then in is well settled that when a third person, at force, that, upon Mrs. Cornwell's death, the the instance of a mortgagor or for his own estate would have descended to her heirs. protection, pays the mortgage debt, he beRev. St. 1855, c. 32, § 2, p. 335. The rule comes entitled to the mortgage, and a court in Shelley's Case has been abolished in this of equity will subrogate him to the rights of state, and we have every disposition to ef- the mortgagee, it cannot be applied here. fectuate the intention of grantors and dev- Mrs. Cornwell was dead when the original isors; but that rule required the grant of a deed of trust was satisfied by Gov. Polk. freehold less than one of inheritance, for Neither she nor her heirs had anything to do the particular estate. Here no life estate is with the payment of the note. This case, so created, but an absolute fee in the first far as O'Reilly and Halle are concerned, is taker, and in such a case the rule would more analogous to the case of Wooldridge not have applied. It follows that we have v. Scott, 69 Mo. 669, in which it was helai a remainder limited after a fee simple ab | that one who lends money to pay off a note solute, and we have seen this can no more given for the purchase money of land is not be done now than at common law. The lim- entitled to be subrogated to the lien of the itation over is inconsistent with and re- vendor, although the money so borrowed is pugnant to the grant to Mrs. Cornwell. applied to paying off the lien. Price v. Learned counsel labored to distinguish this Estill, 87 Mo. 378; Price v. Courtney, Id. case from Green v. Sutton, 50 Mo. 186, but, 387; Norton v. Highleyman, 88 Mo. 621. we think, failed to do so. That case, in all Here all the subsequent loans were evidently essential features, is similar to this, and has made to Mr. Cornwell on the strength of his never been questioned. It is in harmony ownership. He clearly thought he had title with established principles of law, and we to his own right. do not feel at liberty to weaken its force. 4. As Mrs. Cornwell had an absolute es. There ought not to be any vacillation in the tate in fee, Mr. Cornwell had his curtsey, matter of the passing of titles to real estate. and his grantees took that during his life, Green v. Sutton was followed in Tremmel and no rents were recoverable until after his V. Kleibolt, 75 Mo. 255, in which the trust death, December 25, 1889. The claim for imdeed was identical with this deed, save that provements must be preferred in the circuit the trustee convenanted to convey to "the court after the ejectment case is concluded. wife's heirs," instead of "her husband and The statute points out the procedure. The his heirs;" and in that case the husband as- judgment is reversed, and cause remanded serted curtesy, and the heirs claimed that for a new trial in accordance herewith. the limitation over created a life estate in the wife, remainder to them, but this court BURGESS and SHERWOOD, JJ., concur.

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charge thereof, as hereinafter provided, name McCANN et al. v. EDDY et al.

ly, six cars, said to contain 95 head of cattle (Supreme Court of Missouri, Division No. 2.

m. or l. 0. r., from Stoutsville station, MisJune 30, 1894.)

souri, to Chicago, Illinois, station, consigned

to Brown Bros. & Smith, care Union Stock CONNECTING CARRIERS-LIMITING LIABILITY.

Yards at Chicago, Illinois, at the through rate 1. Rev. St. 1889, 8944, providing that a common carrier which receives goods for ship

of 1742 c. per hundred pounds from Stoutsment or issues receipts or bills of lading in the ville, Missouri, to Chicago, Illinois, subject state shall be liable for any loss caused by its

to minimum weights applying to cars of variown negligence, or that of any connecting carrier, does not prohibit a carrier from contracting

ous lengths, as per taritf rules in effect on the with the shipper against liability beyond its day of shipment; the same being a special own line,

rate, lower than the regular rates, or at a 2. Rev. St. 1889, $ 944, making a common

rate mutually agreed upon between the parcarrier receiving goods for shipment liable for his own or a connecting carrier's negligence, if

ties, for and in consideration of which said construed to operate outside the state, would second party hereby covenants and agrees as be an attempt to regulate interstate commerce. follows: * • 13th. And it is further stipAppeal from circuit court, Monroe county;

ulated and agreed between the parties hereto Thomas H. Bacon, Judge.

that, in case the live stock mentioned herein Action by McCann & Smizer against George

is to be transported over the roads or road A. Eddy and H. C. Cross, receivers of the

of any other railroad company, the said party Missouri, Kansas & Texas Railway. Judg

of the first part shall be released from liabilment for plaintiffs. Defendants appeal. Re

ity of every kind after said live stock shall versed.

have left its road, and the party of the sec

ond part hereby so expressly stipulates and Jackson & Montgomery, for appellants. J.

agrees; the understanding of both parties H. Rodes and R. B. Bristow, for respondents.

hereto is that the party of the first part shall

not be held or deemed liable for anything beSHERWOOD, J. Action to recover dam- yond the line of the Missouri, Kansas and ages based on delay in the shipment of a Texas Railway, excepting to protect the lot of cattle from Stoutsville, in Monroe coun- through freight named herein." ty, Mo., to Chicago, Ill. The delay complain- Plaintiffs recovered judgment, and defended of occurred in the latter state and on a ants appeal. connecting road. The contract on which this The section of the statute involved in this action is bottomed is, so far as necessary to litigation is the following: "Sec. 944. Whenquote, the following:

ever any property is received by a common “Rules and Regulations for the Transporta- carrier to be transferred from one place to tion of Live Stock. No station agent or re- another, within or without this state, or when ceiver of this railway has any power or au- a railroad or other transportation company thority to bind the receivers in regard to issues receipts or bills of lading in this state, shipment of live stock, except by written the common carrier, railroad or transportacontract in the following form:

tion company issuing such bill of lading shall kinds of live stock will be taken under the be liable for any loss, damage or injury to provisions of, and at the rates and weights such property, caused by its negligence or provided for by, the tariff classification ap- the negligence of any other common carrier, plying to the territory in which the shipment railroad or transportation company to which originates. In case the owner or consignor such property may be delivered, or over agrees to hold these receivers free from lia- whose line such property may pass; and the bility from any and all causes enumerated in common carrier, railroad or transportation the following contract,

the rates company issuing any such receipt or bill agreed upon and specified in the contract will of lading shall be entitled to recover, in a be given."

proper action, the amount of any loss, damage "Live-Stock Contract (No. 10). Executed or injury it may be required to pay to the at Stoutsville station, Missouri, November owner of such property, from the comm:n 12th, 1890. This agreement made between carrier, railroad or transportation company, George A. Eddy and H. C. Cross, receivers through whose negligence the loss, damage of the Missouri, Kansas and Texas Railway, or injury may be sustained.” parties of the first part, and M. B. Smizer, 1. It has been ruled in Dimmitt v. Railroad party of the second part, witnesseth that, Co., 103 Mo. 433, 15 S. W. 761, under the prowhereas, the receivers of the Missouri, Kan- visions of the quoted section (then section sas and Texas Railway transport the live 598), that it was competent for a common stock as per above rules and regulations, and carrier, by specific agreement, to agree to which are hereby made a part of this con- carry the property only to the terminus of its tract, by mutual agreement between the par- own line, or-what is equivalent thereto-by ties hereto: Now, therefore, for the consider- similar agreement to limit its liability to loss ation and mutual covenants and conditions or damage occurring on its own line. This herein contained, said party of the first part ruling was followed in Nines v. Railway Co., is to transport for the second party the live 107 Mo. 475, 18 S. W. 26. In an earlier case stock described below, and the parties in (Snider v. Express Co., 63 Mo. 376), before

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the enactment of the statute in question, a functions as common carrier, which, by the similar ruling was made. In the case at bar very terms of its charter, it would not be althe instrument which is the basis of this ac- lowed to abdicate or abrogate. But contion is to be construed as a whole. Constru- tracting against the negligence of another ing it in this way, it is easy to see that the corporation rests upon a different footing alliability apparently assumed by the first together. clause of the contract is expressly qualified 3. Moreover, if section 944, supra, is to be and limited by the thirteenth specific agree- construed as being operative beyond the ment aforesaid, which, in clear and unambig. boundaries of this state, then it is plainly uous terms, confines the liability of the de- a regulation of interstate commerce, and fendant company to its own line of road. therefore violative of section 8 of article 1 of In consequence of this, and in consequence of the federal constitution. Stanley v. Railway the defendant company having promptly de- Co., 100 Mo. 435, 13 S. W. 709. Any rule livered at the terminus of its line the cattle pertaining to the transportation of passento the connecting carrier, there was error gers or merchandise from one state to anothcommitted by the trial court in refusing the er is a regulation of interstate commerce, and third instruction asked by defendant, to wit: therefore, under the prohibitions of the fed"(3) The court instructs the jury that defend- eral constitution, a state is inhibited from ants are not liable, under the contract of making such regulations. Case of the State shipment read in evidence, for any damages Freight Tax, 82 U. S. 232. In order to conor delays occurring on any other railroad spicuously show that statute, construed as than the one operated by defendants; and plaintiffs desire, is plainly such a forbidden if you find from the evidence that defendants regulation, it is only necessary to suppose transported plaintiffs' cattle from Stoutsville that the state of Illinois should enact laws in to Hannibal without unreasonable delay, and reference to merchandise transferred to that delivered said cattle to the Wabash Railway state from this state, and at variance with Company, as the connecting carrier, within section 944 aforesaid. As is aptly elsewhere the time usually and reasonably required for said, "Commerce cannot flourish in the midst such transportation and delivery, then the of such embarrassments." Hall v. De Cuir, defendants are not liable in this case, not- 95 U. S. 485. See, also, Gibbons v. Ogden, 9 withstanding said cattle may have been un- Wheat. 1; Pickard v. Car Co., 117 U. S. 34, reasonably delayed on said Wabash Rail- 6 Sup. Ct. 635; Hardy v. Railroad Co. (Kan.) road, and your finding should be for the de- 5 Pac. 6; Carton v. Railroad Co., 59 Iowa, fendants."

148, 13 N. W. 67; Louisville & N. R. Co. v. 2. If the section under discussion is to be Railroad Commissioners, 16 Am. & Eng. R. construed literally; if it is to be interpreted Cas. 1. For the foregoing reasons, as it is as casting on one railway company the bur- evident that plaintiffs have no standing in den of the negligence of another railway com- court, the judgment will be simply reversed. pany, against whose negligence the company All concur. sued has explicitly contracted, as in the present instance,—then I have no hesitation in saying I do not believe that the legislature has the power thus to interfere with the

HICKS et al. v. CITIZENS' RY. CO. right of a railway company to contract, (Supreme Court of Missouri, Division No. 1, speaking in a general way, as it may deem

July 9, 1894.) fit. This power of individuals or corpora- STREET CARS-COLLISION WITH CARRIAGE - NEGtions to contract as they think best has been LIGENCE — INSTRUCTION HYPOTHETICAL QUESrecently decided by this court to be placed beyond legislative interference by constitu

1. Plaintiff drove along defendant's street

car track, and a cable car followed slowly tional guaranties, both state and federal, close behind, under perfect control, giving conwhich uphold the right of "due process of stant signals of its approach Plaintiff, after law," and all that term implies. State v.

passing round a team which had prevented his

driving between the track and the sidewalk, Loomis, 115 Mo. 307, 22 S. W. 350. See, also,

turned to leave the track without increasing his In re Jacobs, 98 N. Y. 98; Butchers' Union speed, and was struck by the car. Held, that Cases, 111 U. S. 746, 4 Sup. Ct. 652; In re

whether defendant's employés were negligent Sam Kee, 31 Fed. 680. The same ruling is

in running too close or not stopping to give

plaintiff time to get off was for the jury. applicable in this case. And it is equally be- 2. Though plaintiff was negligent in going yond the power of the legislature, without on the track, this was not contributory to the fault on the part of the railway company

accident, and whether he could have left the

track more expeditiously, and his failure to do complained of, and in spite of a contract to

so was contributory negligence, was a question that effect to the contrary, to cast upon such for the jury. company the burden of paying for losses in

3. An instruction that if the gripman saw curred through the negligence of another sind

the carriage after it got on the track, in danger

of being struck, in time to have stopped the distinct corporation. Of course, as against car, and so have avoided the collision, the deits own negligence, a corporation would not fense of contributory negligence could not avail, be allowed to contract; for this would be

even if plaintiff negligently drove on the track.

is erroneous as requiring a street car to be subversive of public policy, and besides

stopped immediately on a carriage being seen would be an abdication of the duties and in front of it on the track, though the car was


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