City of St. Louis v. Schulenburg-Boeckler Lumber Co.

• Decision Date: 04 November 1889
• Parties: CITY OF ST. LOUIS v. SCHULENBURG-BOECKLER LUMBER CO.
• Court: Missouri Supreme Court

12 S.W. 248

98 Mo. 613

CITY OF ST. LOUIS v. SCHULENBURG-BOECKLER LUMBER CO.

Supreme Court of Missouri.

November 4, 1889.

EJECTMENT — RES ADJUDICATA — ESTOPPEL.

1. Where defendant in ejectment fails to show performance of conditions precedent in the deed under which it holds, a judgment for plaintiff is no bar to defendant's recovery of the same land, by proving such performance in a subsequent action against the plaintiff's grantees.

2. In Missouri a defendant in ejectment may set up his equities as a separate defense in the same suit, and the judgment thereon is final.

3. A defendant in ejectment wherein plaintiff recovered is not estopped by conduct to bring a subsequent action for the same land against plaintiff's grantees, who supposed the judgment to be conclusive, where such defendant neither induces them to buy nor knows of the purchase.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Geo. M. Stewart and Rudolph Schulenburg, for appellant. Leverett Bell, for respondent.

BLACK, J.

This is an action of ejectment, prosecuted by the city of St. Louis, to recover a parcel of land, the same being a part of the north wharf. The answer is a general denial, res judicata, and estoppel in pais. The plaintiff put in evidence a deed signed by Mary A. Pendleton and some 40 other persons, as parties of the first part, to the city of St. Louis, as party of the second part. It bears date in January, 1853, and was recorded in 1854. The grantors were owners in severalty of various parcels of land on the west bank of the Mississippi river, and by the deed they conveyed to the city, for the purposes of a wharf, the property owned by them, east of a designated line. The deed contained various conditions and covenants, some of which are to be performed by the city before it takes effect, and others are to be thereafter performed; and they contemplate a large expenditure of money on the part of the city in the improvement of the wharf. It is the same instrument which was before this court in St. Louis v. Ferry Co., 88 Mo. 615. The other evidence for the plaintiff, the bill of exceptions states, tends to show that the city had, complied with the terms and conditions of the deed. The evidence for the defendant shows that in 1872 Mary A. Pendleton sued the city of St. Louis in ejectment to recover the parcel of land now in question. The defendant in that case answered by way of a general denial, and on the trial adduced evidence tending to show that it had performed the conditions in the Pendleton deed, and then offered it in evidence; but the court excluded the same, on the ground that the evidence did not show a performance of the conditions precedent, and therefore gave judgment for the plaintiff. The plaintiff was put in possession by virtue of an execution issued upon the judgment, and the city paid the damages assessed in favor of Mary A. Pendleton. On the 9th May, 1879, she, being then in possession, conveyed the property to Schulenburg and Boeckler for the consideration of $300, and they conveyed to the defendant corporation in 1881. When the defendant's grantors purchased they knew of the judgment in favor of Mary A. Pendleton; that it had been satisfied; and that no appeal had been prosecuted by the city. They believed that the judgment was final and conclusive, and had no notice of any intention on the part of the city to further litigate the title. The court refused all of the instructions asked by the defendant, and, in effect, ruled that all of this evidence offered by it constituted no defense.

1. The judgment in the former suit is not a bar to the prosecution of the present one. The repeated rulings of this court...