City of Carondelet v. Wolfert

• Decision Date: 31 October 1866
• Citation: 39 Mo. 305
• Parties: CITY OF CARONDELET, Appellant, v. HERMAN WOLFERT, Respondent.
• Court: Missouri Supreme Court

39 Mo. 305

CITY OF CARONDELET, Appellant,

v.HERMAN WOLFERT, Respondent.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Land Court.

This was an action of ejectment to recover possession of lot 28 of the common of Carondelet. The cause was tried by the court sitting as a jury.

At the trial, the plaintiff gave evidence of the incorporation of the town of Carondelet in 1832, by the judgment of the Circuit Court; and, also, of ordinance No. 78 of the town of Carondelet, approved March 13, 1845, providing for the lease of the common. Sec. 5 of this ordinance was in the following words:

“The lease shall contain a provision to the following effect, viz.: that should the rent reserved as aforesaid, or any part thereof, on any lease remain unpaid for six months after the same shall become due, the board of trustees may by resolution declare such lease terminated and void, and the same shall expire and be determined from that day.”

The plaintiff then read in evidence a lease from the town of Carondelet to Patrick Tiernan, for 99 years, of lot 28 of the common. The rent reserved was one 72-100 dollars yearly, “payable at the end of each and every year during the continuance of said term,” and contained this covenant: “that if any time the rent aforesaid for six whole months shall be in arrears and unpaid, the said parties of the first part * * * may terminate this lease by order or resolution to be entered on record among the acts and proceedings of the said board; and may take possession,” &c. This lease was dated April, 1846; and on January 15, 1847, Tiernan assigned this lease to John Regan, under whom defendant held the land.

The plaintiff then read the charter of 1860 of the City of Carondelet (January 16, 1860).

The plaintiff then produced the book of the proceedings of the common council of Carondelet, and read therefrom the whole proceedings of a meeting held on the 28th November, 1860. Among these proceedings was the following resolution presented by Mr. Hill, “which was adopted”:

“Whereas the sums of money reserved in the form of rent upon the leases hereinafter mentioned, and granted by the late board of trustees of the town of Carondelet, are in arrears and have been unpaid for six months after the same became due and payable, and still remain due and unpaid; therefore, be it

Resolved by the city council of the City of Carondelet, that the said leases hereinafter mentioned and described be and the same are hereby annulled, terminated and ended, and the same are hereby declared void; the said leases being the following, to-wit:--Lease dated the eighth day of April, 1846, to Patrick Tiernan, for lot No. 28 in the Carondelet common, south of the river Des Peres.”

There was a great deal more of the proceedings of that meeting, but this was all that referred to this lot. The proceedings were signed “Bernard Poepping, president board of council.” And this was all the testimony offered by plaintiff.

The defendant read the testimony of Michael Chartrand, who testified that on the evening of the 28th November, 1860, hearing the resolution introduced by Mr. Hill, and before its adoption, he tendered to the collector of the City of Carondelet the amount of the rent due on both the leases embraced by said resolution. The collector refused the rent, saying the leases were going to be annulled, or were annulled. Witness then stepped to the city register, and offered the rent to him and he refused it. This tender was made in a warrant of the City of Carondelet receivable in payment of all dues to the city by ordinance; it was for $45, and witness declared at the time that he demanded no change. No objection was made to the medium of payment. Witness had been requested by Regan to pay this rent. The ordinance making the warrants receivable “in payment or part payment of moneys due” the corporation was also read. This was all the testimony offered by defendant.

Plaintiff, in rebuttal, examined Mr. Reber, who testified that it appeared from the records of his office (he was register of Carondelet), that there was rent due on lot 28 in November, 1860, and that he told the collector to report the fact to the council. Chartrand tendered witness a warrant in payment of the rent due, which witness refused. Witness testified that it was the practice to receive warrants in payment of taxes, rents, &c,, due to the city; and not know of any ordinance on the subject; the practice was universal. The bills for the rent of lots 28 and 156 were returned to the witness by the collector after the session of the council on the 28th November, 1860.

The plaintiff asked the following declarations of law:

1. If the resolution read in evidence, purporting to be a resolution of forfeiture, was adopted by the city council of the City of Carondelet before any offer to pay rent was made, said offer was too late, and did not amount to a tender or an offer to pay rent within the time prescribed for the payment of the same in the lease read in evidence from the former Town of Carondelet to Patrick Tiernan.

2. An offer to pay rent after the adoption of the resolution read in evidence, and before the mayor signed the proceedings of the city council, was too late, and did not amount to a tender or an offer to pay the rent within the time prescribed for the payment of the same in the lease read in evidence.

The court gave these instructions adding to the first, after the word ““Carondelet,” in the third line, “and approved by the mayor,” and inserting in the second, before the word “adoption,” the word “legal.” The plaintiff excepted to the giving of the instructions as modified, and to the refusal to give them unaltered.

Plaintiff asked the following instructions, which the court refused, plaintiff excepting:

1. If the plats, maps, documents, instruments, and other papers read evidence, are genuine, the resolution of the city council of Nov. 28, 1860, read in evidence, and the proceedings of said council read in evidence in connection therewith, are valid and binding; and the lease read in evidence from the former Town of Carondelet to Patrick Tiernan, therein mentioned, was annulled and forfeited by said resolution, if the rent specified in said lease was in arrear and unpaid for six whole months next before the time of the passage of said resolution.

2. An offer to pay rent to the plaintiff, under the lease read in evidence, in and by a warrant issued by the City of Carondelet, is not a lawful tender of said rent according to said lease.

The court, on motion of defendant, instructed the jury as follows, plaintiff excepting:

1. The law is declared to be, that, according to the evidence in this cause, there was no valid and lawful order or resolution passed or adopted by the board of trustees of the town or city council of Carondelet vacating or terminating the said lease for non-payment of rent.

2. The law is further declared to be, that if at any time before the resolution or order of forfeiture contemplated by the ordinance No. 78 had been passed through all its stages, and become the act of the corporation of Carondelet, the arrears of rent due on lot 28 were tendered to the city collector, and that the city collector was duly authorized to receive these rents, the forfeiture was saved.

And thereupon the court gave judgment for the defendant. After a motion for a new trial, the plaintiff brought the case up by appeal.Casselberry, for appellant.

I. This court has on several occasions examined and defined the principles governing transactions of this kind, in the following cases: Woodson v. Skinner, 22 Mo. 13; Taylor v. Carondelet, 22 Mo. 105; Carondelet v. Lannan, 26 Mo. 461; Huth v. Carondelet, 26 Mo. 466.

The above decisions establish the doctrine that a forfeiture of a lease made under or by virtue of the ordinances of the respective cities of St. Louis and Carondelet is a legislative procedure over which the courts have no jurisdiction or control whatever.

II. The forfeiture of the lease mentioned in the record was made by the city counsel of Carondelet under the charter of January 16, 1860--Laws of Mo. 1859-60, p. 306.

The above charter of 1860 is different in many respects from the charter of 1851 in relation to the legislative proceedings of the city...