Bingham v. Kollman

Decision Date02 April 1914
Citation165 S.W. 1097,256 Mo. 573
PartiesJESSIE R. BINGHAM v. HERMAN C. KOLLMAN, KANSAS CITY et al., Appellants
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. R. B. Middlebrook, Judge.

STATEMENT.

This is a suit under section 2535, Revised Statutes 1909, to quiet title. The land in dispute is thirty by one hundred and twenty feet, and is a part of what was originally known as George street, as laid out and dedicated in 1858 by Joseph C Ransom and others in a subdivision of lots and public highways made by them in the city of Kansas, now Kansas City. The strip of land in dispute runs north and south and intersects at right angles with Independence avenue, now Admiral boulevard.

Plaintiff alleges that she is the owner in fee in said lands under a purchase of the same when sold by Kansas City for taxes for the years 1903 and 1904. That defendants, Kansas City, Alfred G. Ford and Elizabeth Ford and a number of other persons made defendants, claim some title; wherefore, the petition prayed the court to define and adjudge the respective titles of the parties to said land. The defendant Kansas City answered separately, averring that the real estate is a public street. Defendants A. G. and Elizabeth Ford answered denying that the statements of the petition showed that the land was individually owned or subject to taxation, or that plaintiff's purchase thereof for due taxes was in accordance to law. Averring that there was a misjoinder of all the defendants except Kansas City and Alfred Ford and wife. Pleaded the Statute of Limitation for ten years. Admitting that the land sued for is a street in Kansas City. Averring that said defendants were owners in fee of the tract subject to the easement of said city. Averring that plaintiff was without title because her muniments of title were void. There is no substantial dispute to the following facts:

In 1858, Joseph C. Ransom and others platted certain lands belonging to them as "Ransom and Tally's addition to Kansas City, Missouri," which plat was duly acknowledged and recorded, and showed the dedication of George street (now Tracy avenue) thirty feet wide, extending north and south the length of the addition, as a public street. At right angles to this street was laid off on the plat two other streets now known as Admiral boulevard and Independence avenue. When Independence avenue was graded by the city up to Tracy avenue, the surface of the latter was left fifteen or twenty feet above the grade of Independence avenue, making Tracy avenue impassable. Thereupon on the thirtieth day of April 1878, the owners of the property on both sides of Tracy avenue for its full length, petitioned the county court of Jackson county to vacate that part of Tracy avenue lying between Admiral boulevard (then Sixth street) and Independence avenue, for the reason that the heavy cutting required would greatly damage their property. Thereafter at the June term, 1878, the county court acceded to the request of its petitioners and declared said property of Tracy avenue vacated as a public street and described in its judgment boundaries of said street so vacated. This petition was accompanied by a plat referred to and made a part thereof and which showed the names of each owner on both sides of the street and the number of feet of ground owned by him, to be the same as the signers of the petition. The consent in writing of the owners of more than two-thirds of the property adjoining the street to be vacated was acknowledged before a notary public and filed for record in the recorder's office. The decree of the county court recited these facts and also that notice of the pendency of the petition to vacate the street was given for thirty days before the first day of the June term by written notices set up in three of the most public places in the City of Kansas, now Kansas City.

After the vacation of Tracy avenue, the city assessed the vacated street for taxes as private property, and has continued so to assess it up to the present time. The title of the plaintiff rests upon two tax deeds. One tax deed is for the taxes of 1903 and conveys the west half of the strip. The second tax deed conveys all the strip for the taxes of 1904. The latter deed is fortified by two deeds made to correct the error of leaving in the words, "Adjourned sale," which appeared in the original deed. One deed of correction is made by the city treasurer in office at the time the deed of correction was made.

The defendants Ford claim title to the land abutting on both sides of the vacant street under a deed from Joseph Moss and wife dated September 24, 1893, this deed purported to cover the land east of the strip, and under a deed from Frederick R. Emberic dated May 20, 1907, purporting to convey the land lying on the west side of the strip. There was testimony tending to prove that Independence avenue where it abuts on this vacated strip, has a sidewalk and curb in front of this strip, and there is no travel over this strip except by pedestrians who have used it as a footway for fifteen or sixteen years.

The trial court found that the plaintiff had a fee simple title to the whole strip and defendant had no title or interest in the same. From that judgment defendants Kansas City, Alfred Ford and Elizabeth Ford have appealed to this court.

Affirmed.

Frank Titus, John G. Park, A. F. Evans, F. M. Hayward, Inghram D. Hook and A. F. Smith for appellants.

(1) The order of June 4, 1878, by the county court of Jackson county declaring vacated as a public street Tracy avenue from Independence avenue south to Sixth street, in Kansas City, is insufficient as matter of law as shown by the proceedings of said court in evidence, to destroy such street or abrogate public right thereto. (a) Said county court is not shown to have had jurisdiction of the subject-matter. The proceedings were had under the act approved January 30, 1866, Laws 1865-6, p. 200. The petition here in question sought the vacation of a small portion about 500 feet in length of a city street itself more than a mile in length. Such petition failed to comply with the provisions of section 1 of said act in omitting to name and set out therein the names of the persons to be affected by such vacating. Compliance with the statute required the name of the City of Kansas, among others, to be inserted in any application for vacating a city street, it being directly and manifestly affected. The city was omitted to be named therein. Such omission rendered the proceedings radically defective. There is no record entry or other proper evidence showing due and lawful public notice of the pendency of the petition before said county court -- the statute, section 1 of the act aforesaid -- requiring, in lieu of newspaper publication, the setting up of notices in writing as to such pendency, and the nature of such petition in three of the most public places in the City of Kansas. A county court being a tribunal of limited jurisdiction, it is required that all facts showing jurisdiction both as to the persons and subject-matter to be affected must affirmatively appear, to sustain property rights based on an act of such court. St. Louis v. Alexander, 23 Mo. 483; Woolcot v. Lawrence Co., 26 Mo. 272; Steines v Franklin Co., 48 Mo. 167; Valle v. Fleming, 19 Mo. 454; Reardon v. St. Louis Co., 36 Mo. 555; Bauer v. Franklin Co., 51 Mo. 205; Saline Co. v. Wilson, 61 Mo. 237; Butler v. Sullivan Co., 108 Mo. 630; Moss v. Kauffmann, 131 Mo. 429; Sturgeon v. Hampton, 88 Mo. 213; State ex rel. v. Madison Co. Ct., 136 Mo. 326; Corrigan v. Morris, 43 Mo.App. 456; Drainage Dist. v. Dandt, 74 Mo.App. 586. The Act of January 30, 1866, as it makes no mention in its title of the extraordinary extension given in the body of the act to the jurisdiction of the county court, should be held void as to that feature of the law. Kansas City v. Payne, 71 Mo. 159; State v. Coffee Co., 171 Mo. 642; State v. Bixman, 162 Mo. 69; State ex rel. v. Marion Co. Ct., 128 Mo. 427; State v. Persinger, 76 Mo. 346; Witzman v. Railroad, 131 Mo. 612; Williams v. Railroad, 233 Mo. 666; State ex rel. v. Dist. Co., 237 Mo. 103. (b) County courts possess neither common law nor equity jurisdiction. Such jurisdiction as they have is exclusively statutory in character. No power is vested in these courts by implication. Coil v. Pitman's Admr., 46 Mo. 52; Jefferson v. Conan, 54 Mo. 234; Saline Co. v. Wilson, 61 Mo. 237; Sturgeon v. Hampton, 88 Mo. 211; Railroad v. Hatton, 102 Mo. 45; State ex rel. v. Madison Co. Ct., 136 Mo. 323. And where a county court is without jurisdiction of the subject-matter, its judgments are attackable collaterally. Fithian v. Monks, 43 Mo. 502; Iba v. Railroad, 45 Mo. 469; Allen v. Scharringhausen, 8 Mo.App. 229; York v. Roberts, 8 Mo.App. 140; Gideon v. Hughes, 21 Mo.App. 528; Freeman on Judgments (4 Ed.), secs. 525-7; Black on Judgments (2 Ed.), sec. 936; Adams v. Cowles, 95 Mo. 507. The records of the county court in evidence in this case fail to show any sufficient notice of the proceedings for vacation. State v. Brown, 130 Mo.App. 214; Frizell v. Rogers, 82 Ill. 109; 2 Black on Judgments, sec. 875; Hayward v. Guilford, 69 Mo.App. 4; Burns v. Railroad, 15 F. 177-183. There is nothing in the record or files of the proceeding showing that such alleged notice contained any statement as to what the petition prayed for, or the nature of the order or judgment sought thereby; nor any facts whatever disclosing anything as contained in such notice. Nor are the locations or situations mentioned which the constable may have considered three of the most public places in said city. (2) The City of Kansas was a necessary party to any proceeding seeking vacation of public streets within the city; and...

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