Guest v. Farley , 19 Mo. 147 ( 1853 )

Scott, Judge,

delivered the opinion of the court.

This was an action of ejectment, begun in 1848, by the plaintiffs in error, who were plaintiffs below, against the defendant, for a lot of ground in St. Louis. The plaintiffs submitted to a nonsuit and sued out this writ of error.

Francis Jourdan being the owner of the lot in dispute, on the 4th of March, 1818, conveyed it to Edward S. Gantt, by deed, a part of which is here copied : “This indenture made by and between Francis Jourdan, alias Labross, of the town of St. Louis and Territory of Missouri, of the one part, and Edward S. Gantt, of the other part, witnesseth: that the said Francis Jourdan Labross, for and in consideration of the love and affection he entertained for his dear wife, Sarah R. Labross, and for the further consideration of five hundred dollars to him in hand paid, the receipt whereof he doth hereby acknowledge, hath given, granted, bargained and sold, and by these presents doth give, grant, bargain and sell unto the said Edward S. Gantt, his heirs and assigns forever, the following lot,” &c. This conveyance was in trust for the use of the above named Sarah R. Labross, during her natural life, and in trust for the heirs of the said Sarah, in fee simple.

Gantt, the trustee, had departed this life before the bringing of the suit, and the plaintiffs are his heirs at law.

1. It will be seen that the deed was executed after the introduction of the common law and British statutes. The statute of uses was not formally enacted in this state until the year 1825. It seems to be the established doctrine, that English statutes, passed prior to the fourth year of James I, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country. Under the influence of this principle, it has been held in several states, that the statute of uses, 2T Henry YIH, became a part of the common law of those states. We see no reason for departing from this rule, in the construction of our statute introducing the common law- and English statutes. Indeed, the point was not controverted in the argument of the case.

This suit was brought before the enactment of the late code; consequently it was proper to institute it in the name of those who held the legal title to the lot. In making this remark, we do not wish to be understood as expressing an opinion as to the manner in which the suit should hare been brought under the law now in force.

It was contended for the defendant that, as the deed was expressed to be made for love and affection of the wife, and for the furthor consideration of five hundred dollars, it may be presumed that, as part of the consideration was for love of the wife, that the $500 also was paid by her, it not appearing expressly by whom it was advanced; consequently that the use, under the statute, would be executed in the wife and not in Gantt, the trustee.

Without endorsing the correctness of the inference attempted to be drawn from the words of the deed, that the consideration money was advanced by the wife, and even admitting that it was paid by her, the received construction of the statute would not warrant the conclusion that a use was thereby raised in her. In a bargain and sale, the consideration of love and affection will not raise a use. No use arises without a valuable consideration. Lord Coke says : 44 A bargain and sale is a real contract upon a valuable consideration for passing lands by deed indented.” 2 Inst. 672.

The statute only raises a use in the bargainee. Sanders says, 44 it is the consideration which directs the use to the bargainee, and the parties could not declare it to any other person, even if they were inclined to do so.” Sanders, 313, 315. Afterwards, he says, 44 that there is no necessity that the bargainee himself should pay the consideration money, for if it is paid by a stranger, it will be sufficient to raise the use in the bargainee; therefore, if a man, in consideration of a certain sum paid by B., bargains and sells Ms lands to A. for life, remainder to C., in fee, this is good, for, though A. and C. themselves did not pay the consideration, yet it is clear that it was paid upon their account, or if, in this case, the bargain and sale had been to B. for life, with many remainders over, the consideration might well extend to those in remainder.” Ib. 341. 2 Inst. 672. 2 Rolle’s abr. 784, pi. 6.

As there was a use raised in the bargainee, no use could be limited to arise out of the estate of the bargainee, for that would be to limit a use to arise upon a use. The statute only executes the first use. A use upon a use is no estate at law ; it is only a trust, a creature of the courts of equity. Then, even if the consideration had passed from Mrs. Labross, yet it could not raise a use in her, which courts of law would recognize. It was no legal estate ; it was a mere trust, a thing only dealt with by courts of chancery. Sanders, 815. 2 Dyer, Tyrrel’s case, 151, (a.) 1 Leon. 147-8.

As to the view suggested, that the wife is dead, and there being no longer any use for a trust estate, it is extinct; it may be answered that such a consideration could only have weight when urged by a cestui que trust. The defendant is a stranger, and he has no right to insist on such a defence. With the concurrence of the other judges, the judgment is reversed and the cause remanded.