Farrar v. Comfort

Dryden, Judge, delivered the opinion of the court. William Christy and wife, by deed dated 20th September, 1832, convey to their two sons, Edmund and Howard, each two lots in severalty, in the city of St. Louis; habendum as follows: “ 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 withoirt leaving legal heirs of their body, the survivor shall inherit the whole of the property hereby conveyed; and should both grantees die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to the legal heirs of the said William and Martha Christy.” William Christy died in 1837. Edmund Christy died in 1840, without issue, leaving surviving him seven brothers and sisters, of whom Howard, his co-grantee, was one, and Mrs. Sweringen, one of the plaintiffs, was another. Mrs. Sweringen and the other heirs of William Christy, except Howard, by their quit-claim deed of 7th October, 1842, reciting the making and provisions of the deed of September, 1832, and the death of Edmund without issue, and the agreement of the grantors, heirs of William and Martha Christy, “ to relinquish all their estate and expectancy in said lots to the said Howard E. Christy,” granted, released and quit-claimed to said Howard “all our and each of our right, title, interest, estate and expectancy in and to said lots, and each of them.” Contemporaneously with the execution of the quit-claim — 53 — deed Howard Christy, with David D. Mitchell and C. J. Schaumburg, bis securities, executed to Mrs. Sweringen and her husband a bond in the sum of three thousand dollars, conditioned as follows: “The condition of the above obligation is such, that whereas William Christy and wife, by their deed bearing date the twentieth day of September, eighteen hundred and thirty-two, now of record in the recorder’s office of St. Louis county, in book A, number 2, p. 201 and following, conveyed to Edmund T. Christy and Howard E. Christy certain lots or parcels of ground lying in the city of St. Louis, in block number ninety-one, and more particularly described in said deed, upon certain conditions therein specified ; and 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, of whom the said Martha, wife of James T. Sweringen, is one; and whereas the said James T. Sweringen and Martha his wife have, by their deed, made jointly with certain other heirs of the said William Christy and wife, executed to the said Howard E. Christy a release and quitclaim of all such right, title, interest, estate and expectancy in and to said property as they would have been entitled to by virtue of the first mentioned deed, upon the happening of said contingencies, had not said release been executed : — 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, his heirs, executors or administrators, shall well and truly pay to the said James T. Sweringen and Martha his wife, [their] heirs, executors, administrators or assigns, the value at the time of happening of said contingency, of the portion, part or interest which the said Sweringen and wife, their heirs, executors or administrators, would have been en — 54 — titled 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, otherwise shall remain in full force and virtue. [Signed] H. F. Christy (seal). D. D. Mitchell (seal). O. W. Schaumburg (seal).” In 1853 Howard Christy died, without issue, having previously disposed of the four lots to strangers. Afterwards, in 1854, the plaintiffs (Farrar being assignee of Sweringen, the husband) sued the defendants, the administrators of Howard, on the agreement recited in the bond for the valúe at the time of Howard’s death, of what it was assumed would have been her interest in the four lots under the deed of 1832 but for the release of 1842, and recovered a verdict and judgment for twelve thousand one hundred and seventy-three dollars, from which the defendants appeal to this court. On the hearing of the case in this court, (Farrar v. Christy’s adm’rs, 24 Mo. 453,) the court decided that the legal effect of the deed of 1832 was to vest in Edmund and Howard each a life estate in the lots conveyed to them respect-, ively, and also to vest in each the remainder in fee in the lots of the other ; and so held that on the death of Edmund without issue his remainder in fee, in the two lots conveyed to Howard for life, descended to his brothers and sisters; and also decided that by the true construction of the contract of 7th October, 1842, the grantors in the quit-claim deed were to “ 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”— (24 Mo. 472) ; and furthermore, that the plaintiffs were limited in their recovery to the penalty of the bond, and reversed the judgment. The decision was made after full argument and upon great deliberation, and we will regard it as the law of the case so far as concerns the questions then before the court. After the case went back to the Circuit Court, the plaintiffs amended their petition to conform to the opinion of this court, and — 55 — another trial was had, resulting in a verdict and judgment for the plaintiffs for the amount of the penalty of the bond and interest; and the defendants have again appealed to this court. The grounds upon which a reversal is sought are — first, there' is no breach of the bond; second, the decree and proceedings in the suit in chancery between the heirs of William Christy for the partition of the estate descended to them operated as a satisfaction and discharge of the subject matter of this suit; and third, the demand is barred by limitation for not having been presented to the administrator of Howard Christy within the first three years of the administration. 1. The point involved in the first ground, i. e., that there is no breach of the bond, was distinctly made by the defendants when the case was here before; and the court, in its construction of the contract of the 7th October, 1842, having then overruled the objection, we will give it no further consideration, but stand by the former decision. 2. On the last trial, the defendants rested upon a defence, not made on the first, based upon the record and procedings in a chancery suit in the St. Louis Circuit Court, prosecuted by Howard Christy and others, part of the heirs of William Christy, against Mrs. Sweringen and others, the remainder of said heirs, for the partition of the landed estate which had descended from said William Christy to his said heirs. In the bill, Howard Christy charged that the two lots acquired by the deed of 1832 had been conveyed to him by his father by way of advancement in life, (stating the limitations and restrictions as in the deed,) and brought them into hotchpot, and in the final division of the property he was charged with their value, at the time of the conveyance, as so much received from the estate of his father. The suit was brought in 1839, and the final decree determining all questions concerning advancements, and settling the rights of the several heirs in the property descended, was rendered in 1843, and in pursuance of it the estate was divided, and each heir — 56 — went into the possession and held the part assigned him in severalty. The chancery proceeding is relied upon as a former adjudication of the subject matter of the present action, and as a bar to the plaintiffs’ recovery. If the assumption was tenable that the subject of the litigation was the same in both suits, it might be conceded, that, having once been passed upon by a court of competent jurisdiction in a suit between the same parties, the decision ought to be final and a bar to this action. But the identity of the matter in dispute in the two cases cannot be maintained. The first was a suit for the partition of a large landed estate descended to the parties, in which the value of two lots at the time they were conveyed in 18S2 to Howard by way of advancement, incidentally arose, there was no averment or issue as to the quantum of Howard’s estate in the lots. The second suit involves the question, whether, but for the release of Mrs. Sweringen, she would not have had an interest in the same lots at the death of Howard, and if so, what was the value of that interest at the time of his death in 1853. The facts averred in the chancery suit, whether true or untrue, neither prove nor disprove the existence of the facts necessary to the plaintiffs’ recovery in this case. The defendants further insist that the partition is an implied warranty between the coparceners, by which Mrs. Sweringen is estopped to claim an interest in the property in question. There is an implied warranty between coparceners as to the property partitioned; but the lots under consideration were not partitioned; they were never held in coparcenary by descent from William Christy, and were not the subject of partition among his heirs. There is, therefore, no warranty in the case. 3. The suit as originally brought, based upon the agreement recited in the bond and not on the bond for the penalty, was a sufficient exhibition of the plaintiffs’ demand to save it from the operation of the statute of limitations of three — 57 — years from and after tlie grant of administration to the defendants. Let the judgment of the Circuit Court be affirmed. The other judges concur. The counsel for defendants filed a motion for rehearing, which was overruled.