Farrar v. Christy's Administrators , 24 Mo. 453 ( 1857 )

Scott, Judge,

delivered the opinion of the court.

The deed of William Christy and his wife, bearing date the 20th of September, 1832, conveying lots to their two sons Howard and Edmund, contained these words : “to have and to hold the premises aforesaid, with all the appurtenances thereto belonging, to them and their heirs forever, upon condition that should either of the grantees herein named die without leaving legal heirs of their body, the survivor shall inherit the whole, of the property hereby conveyed ; and should both die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to the other legal heirs of the said William and Martha T.” The lots referred to in the deed were conveyed by separate metes and bounds, two to Howard and two to Edmund.

It is laid down in the books as settled that conveyances to uses are to be construed in the same manner as deeds deriving their effect from tbe common law. For, since tbe statute of uses, a use is turned into a legal estate to all intents and .purposes ; it must be conveyed exactly in tbe same manner and by the same words. (Cruise, tit. Deed, cb. 20, sec. 71, 72.) There is no use declared in that part of tbe deed whose construction is involved in this controversy affecting tbe question before us. Tbe deed is a common bargain and sale, operating under tbe statute of uses, without any declaration of trusts or uses, and is consequently more clearly comprehended, within tbe rule just stated than any others.

Tbe limitations of tbe deed of William Christy and bis wife being construed in reference to the rules of the common law, nothing is clearer than that Howard and Edmund Christy severally took estates in tail in tbe lots granted to them. There is a universal concurrence among law-writers that a gift to a man and bis heirs, and if he shall die without heirs of his body then to others, conveys an estate tail. (2 Prest, on Est. 4, 504; Cruise, tit. Deed, ch. 21, sec. 81 ; Crabbe’s Law of Real Property, § 975.)

Here then are estates tail created. So soon as that was done those estates became subject to the operation of the 4th section of the act regulating conveyances, approved February 14, 1825, which provides that “ in cases where by the common law any person or persons would now be, or might hereafter become, seized in fee tail of any lands, tenements or heredita-ments by virtue of any devise, gift, grant or other conveyance heretofore made or hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be and become seized thereof for his or her natural life only; and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would on the death of the first grantee, devisee, or donee in tail first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” By this it will be seen that so soon as an estate tail is created, that estate is destroyed and another is substituted for it. It is done immediately upon tbe creation of the estate tail without any postponement. Now neither Howard nor Edmund had heirs of his body when the deed was executed, and the entail created ; consequently the remainder could not vest in the issue of either of them.

Here a question arises, whether by the terms of the act, above recited, the remainder therein mentioned can vest in any other person than one who by the course of the common law would be an heir to the estate tail had the estate not been destroyed. There is nothing in the terms of the act which shows -that it was not designed to destroy all estates tail. Entails were not congenial to our institutions, and the act was intended to break them up. If none but those who would have been heirs of the entail were intended, then it is obvious that the statute would not reach any of those cases in which the first grantee in tail had no issue. We are not warranted in supposing that the legislature only intended to break up particular entails. The reason that would break up one would break up all others. We do not see anything in the words of the act that requires this restricted construction. The statute says, the remainder shall pass to the person to whom the estate tail would on the death of the first grantee in tail first pass according to the course of the common law by virtue of the grant. It is true, as the first taker of the estate tail had no heir in the case supposed, it was uncertain at the creation of that estate whether the entailed estate would ultimately vest in the heir in tail or in him who was to take in the event there was no heir. But there is no reason why this uncertainty as to the person who would be the first taker of the entailed estate should render the statute nugatory. The uncertainty was between two whom the grantors preferred to all others. If one could not take, it was intended that the other should. Bearing in mind that there was no reason why one estate tail should not be abolished as well as another, the words employed in the act sufficiently indicate that another than the heir in tail may be the first taker according to the course of the common law by virtue of the grant. Had the general assembly designed that the heir in tail alone should be the first taker, why speak of the person to whom the estate would first pass by virtue of the devise, gift, grant or conveyance ? After giving a life estate to the first grantee in tail, how much more compendious and appropriate would it have been to have said that the heir of such grantee shall have the fee simple or take the estate as purchaser ? The language used could only have been employed on the supposition that, limiting the fee simple to the heir in tail alone, there would be cases which would escape the operation of the statute.

As we maintain that another than the heir in tail may be the first taker of the entailed estate after the death of the first grantee in tail, the question arises as to the manner in which the fee simple is to be disposed of, when, as in the case before us, the first grantee in tail has no heir at the creation of the estate tail, but the'remainderman is in existence to whom the estate is to pass in the event that the first grantee of the estate tail dies without issue. ' Is the fee simple in abeyance ; or does it pass to the remainderman, subject to be divested by the birth of issue of the first grantee of the estate tail ? We are of the opinion that the fee simple passes to the remainder, subject to be divested by the birth of issue of the first grantee of the estate tail. Such a construction of the act seems to be necessary in order to avoid the mischief that would ensue from a contrary interpretation. If the fee simple Was judged to be in abeyance, the circumstances of this case furnish an instance in which the fee simple would be lost or confiscated. Edmund Christy, as re-mainderman, dying when the fee was in abeyance, before the death of Howard, who was childless, there would be no person to whom the fee could pass. His heirs could not take as such, as there had been no interest or estate in him. The fee simple having never vested in Edmund, there would be nothing in him that was transmissible by descent. If his heirs took at all it must be as purchasers. There was nothing remaining in the grantors of the entail. Their whole estate passed by their deed. The fee simple then must have escheated, as there would be no person to take it, the words of the act clearly showing that none but he, to whom the estate tail would first pass after the death of the first grantee in tail, according to the course of the common law, by virtue of the devise, gift, grant or conveyance, can be a taker of the fee simple. The language used indicates that it was intended that the fee simple should pass presently. It is in harmony with the spirit of the act to make the fee simple pass upon the creation of the estate tail. The first taker, whoever he may be, will have the immediate power of disposal. If he is another than the heir in tail, he may alien, subject to the contingency of being divested by the birth of issue of the first grantee of the estate tail.

It was intimated that the ■ estates of Howard and Edmund Christy being entails only by implication, the court should not, in construing the fourth section of the act regulating conveyances, raise an estate tail in order that it might be destroyed. If it was conceded that those estates were such, yet they would be comprehended within the words of the act. We are required to ascertain whether the estate would by the common law be an entail. Whether it be an express estate tail, or one by implication, it is equally an entail within the statute. But the answer to this objection is that the implication cuts down what would otherwise be a fee simple, and leaves Howard Christy the quantum of interest he would take by making it an entail. The only difference is that he would take his own instead of Edmund’s lots.

In construing the deed of William and Martha Christy, we have not deemed it our duty to regard their intention. It is unquestionably a maxim of our law that all deeds shall be construed favorably and as near the apparent intention of the parties as possible consistently with the rules of law. If, however, the intention of the/parties is contrary to the rules of the law, it will then be otherwise ; for it would be highly improper and inconvenient to permit private persons to contradict the general rules of law. (Cruise Dig. tit. Deed.) The parties have created an estate tail against the policy of the law ; the statute has declared that such estates shall not exist, and has prescribed the disposition which shall be made of them. Now in dealing with the subject it is obviously the duty of the courts to regard the intent of the legislature and not that of the parties . The construction given to the act is not designed for the circumstances of this particular case only, but for all others which may arise.

The result to which we come, deduced from what has been said, is that Howard Christy took an estate for life in his two lots, with a right to the fee simple in Edmund’s two lots if he died without children ; and that Edmund took an estate for life in his two lots, with a right to the fee simple in Howard’s two lots if he died without children. As Howard died without children, the fee simple which vested in Edmund descended on his death to his heirs, and continued in them, of whom Howard is one ; and as Edmund died without children, the fee simple of his lots which vested in Howard continued in him, and was subject to his absolute disposal. So Howard' became entitled absolutely to Edmund’s two lots, and to an heir’s share in his own two lots, derived by inheritance from Edmund. We can see no reason whatever for treating Edmund’s right to the fee simple in Howard’s lots .in a manner different from that in which Howard’s right to the fee simple in Edmund’s two lots is treated.

We are of the opinion that there is no estoppel of the defendants. The case, as presented, shows that there was a disagreement or doubt as to the proper construction of the deed of 1882. As the rights of the parties under that deed would be fixed at the death of Howard (Edmund being dead) it was agreed that they should convey their interest in the four lots to Howard, he paying to the plaintiffs the value of any interest in them they might convey, to be ascertained at the death of Howard. Taking all parts of the bond together, we can not avoid the conclusion that such was the intention and understanding of the parties. If it was supposed by the parties that they had agreed with Howard that upon his death, without issue, the heirs of William Christy should have the entire property in the four lots, it would never have been written in the condition of the bond : t£ Now, if the said contingency in the first deed mentioned shall happen, whereby the said obligees or their heirs would have been entitled by virtue of said first mentioned deed to said property, or any -part thereof, or any interest in the same, had not said release been executed, and the said Howard E. Christy, &c., shall well and truly pay to the said James T. Sweringen and Martha his wife, &c., the value, at the time of happening of said contingency, of the portion, part or interest which the said Sweringen and wife, their heirs, &e., would have been entitled to in said property in said first deed described by virtue of said deed, had not the said release been executed, then this obligation shall be void,” &c. If the parties had fixed it as the agreement that upon the death of Howard, without issue, the whole estate should pass to the heirs of William Christy, could they not have expressed themselves in language very different from that employed ? The words, to have been consistent with such an idea, would have been that Howard Christy should pay the value of their share or portion in the property or the four lots. Had the compromise supposed been made, the share or portion of Sweringen and wife in the property would have been ascertained ; and the words “ or any part thereof, or any interest in the same,” are inconsistent with the notion that there had been any adjustment of their interest. Had the parties agreed upon an interpretation which, in their opinion, might be different from that the deed would receive as it came from the hands of the grantors, would they have provided that Sweringen and wife should be paid the value of the interest which they would have been entitled to in said property in said first deed described by virtue of said deed ? If they supposed they had altered the construction of the original deed, could they not have provided for the payment of the value of the interest according to the agreed construction, and not their interest by virtue of the original deed ? The language in the latter part of the condition above cited sufficiently indicates that the recital, “ whereas, upon the happening of certain contingencies in said deed mentioned and contained, the said property, lots and parcels of ground therein specified would, by the terms of said deed, 'revert and belong to the heirs of the said grantors in said deed,” &c., was not intended to fix the construction of the deed of 1882, but was only intended as a recital of its terms, leaving the effect of the whole deed to be ascertained at the death of Howard.

It has been twice decided by this court that an action of covenant will not lie on a penal bond with collateral condition. (1 Mo. 79; Crawford v. Wooodward, 8 Mo. 353.) If covenant will not lie on the condition, then the parties are limited in their recovery to the penalty. In the case of Lowe v. Peers, 4 Burr. 2225, Lord Mansfield said, “ there is a difference between covenants in general and covenants secured by a penalty or forfeiture ; in the latter case the obligee has his election; he may either bring an action of debt for the penalty and recover, or if he does not choose to go for the penalty he may proceed upon the covenant and recover more or less than the penalty.” This was in an action of covenant brought on an instrument whereby the defendant promised to the plaintiff not to marry any other person than herself, and agreed to pay the plaintiff £1000 if he married any one else. The case of Martin v. Taylor, 1 Wash. C. C. -, in which Washington, J., uses language of similar import to that of Lord Mansfield above cited, was on a covenant whose performance was secured by a penalty similar in every respect to the case in Burrows. The instrument between these parties is unlike those in the controversies above cited. Here there is no covenant. Sedgwick, in speaking on this subject, says, “ but in the condition of a bond to do or refrain from any particular act secured by a given penalty, does any agreement appear absolutely to do the act or to respond in indefinite damages ? Practically we know that it is not so understood. The obligor always considers the penalty as limiting the extent of his obligation.” (Sedg. on Dam. 426.) According to the decisions heretofore made by this court, the plaintiffs will be limited in tlieir recovery to the penalty, and most sue on the instrument.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.