Freymoth v. Nelson

BLAND, P. J. On March 14, 1900 and since the delivery of our opinion, the supreme court in the case of Belle Simpson et al. v. James Erisner, (155 Mo. 157) handed down an opinion, wherein it is held that the title to the lands conveyed by defendants in this suit to Erisner, is under the will of John H. Simpson vested in trustees named in the will for and during the life of the widow of the testator. The record as presented to us does not contain the will of Simpson, and it was admitted by both parties that the title to the lands on the death of Simpson immediately vested in the legatees in his will. On this hypothesis the first opinion correctly states the law of the case. The widow of Simpson was alive when the suit was commenced. The right of possession was therefore in the trustees appointed by the will of Simpson. The surrender of his possession by Erisner to the respondents yvas therefore voluntary, not under compulsion, nor to parties having the paramount title with the right to. immediate possession, and hence there was no such breach of the covenant of seizin as entitled Erisner or his assignee to sue for a recovery of the purchase price of the land. Judgment affirmed. Judge Bond concurs; Judge Biggs absent.