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

• Decision Date: 04 November 1889
• Citation: 12 S.W. 248,98 Mo. 613
• Parties: The City of St. Louis v. The Schulenburg & Boeckler Lumber Company, Appellant
• Court: Missouri Supreme Court

12 S.W. 248

98 Mo. 613

The City of St. Louis v. The Schulenburg & Boeckler Lumber Company, Appellant

Supreme Court of Missouri

November 4, 1889

Appeal fro St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Affirmed.

Geo. M Stewart and Rudolph Schulenburg for appellant.

(1) Defendant's grantor, in an action against the present plaintiff, in the circuit court of St. Louis, and the present plaintiff submitted to that court the question whether the deed of 1853, under which plaintiff here claims title operated to pass title, or was effective eo ipso to convey the property described therein. The adjudication was adverse to the present plaintiff, and the judgment which followed became final, no appeal having been taken and the judgment was fully satisfied. Whether the judgment so rendered was right or wrong, it became final and is binding on the parties to that litigation and their privies in estate. Buchanan v. Smith, 75 Mo. 463; Chouteau v. Gibson, 76 Mo. 38; Johnson v. Latta, 84 Mo. 139; State ex rel. v. Boothe, 68 Mo. 546; Schmeiding v. Doellner, 13 Mo.App. 228; Preston v. Rickets, 91 Mo. 320; Milne v. Deen, 7 S.Ct. 1004. (2) Plaintiff is estopped, as against this defendant, from asserting any title to the land sued for. It permitted Mrs. Pendleton to take possession of the land after she had recovered judgment for its possession, and suffered her to occupy, use and deal with it as her own, and, while she was so in possession of the property under this judgment, she conveyed it to defendant for full value, and it purchased the same with no knowledge or intimation that the city did not propose to abide by the judgment, which it had satisfied in full, and from which it could not appeal.

Leverett Bell for respondent.

A judgment in ejectment is no bar to a second action for the same property, notwithstanding the trials, defenses and parties are the same in both actions. Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493; Avery v. Fitzgerald, 94 Mo. 207. Nor can the same result be produced by estoppel. Prior v. Lambeth, 78 Mo. 538.

Black J. Ray, C. J., absent.

OPINION

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 forty 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 purpose of a wharf, the property owned by them east of a designated line. The deed contains 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. Wiggins 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 May 9, 1879, she, being then in possession, conveyed the property to Schulenburg & Boeckler for the consideration of three hundred dollars, 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 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 are that a judgment in an ejectment suit is no bar to a second action between the same parties for the same property, and this is true whether the titles and defenses are the same or not. Kimmel v. Benna, 70 Mo. 52; Ekey v Inge, 87 Mo. 493; Avery v. Fitzgerald, 94 Mo. 207, 7 S.W. 6. We do...