Curators of Central College v. Shields
| Decision Date | 02 July 1945 |
| Docket Number | 39325 |
| Parties | Curators of Central College v. B. L. Shields, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court; Hon. Aubrey R. Hammett Judge.
Affirmed.
Roy D. Williams for appellant.
(1) Even though the plat was defective, the use of the City of the land laid out and lots abutting Chancellor Street were sold, it was a common-law dedication. Otterville v Bente, 240 Mo. 291; Heitz v. St. Louis, 110 Mo. l.c. 624; Railroad v. Baker, 183 Mo. l.c. 322; Indianapolis v. Kingsbury, 101 Ind. l.c. 212; Stetson v. Dow, 16 Gray, 372. (2) The deed from the curators of Central College to the City of Fayette, having been on record for twenty years, is binding, though it did not bear the seal of the corporation. Josephine Hospital Corp. v. Modoc Realty Co., 270 S.W. l.c. 642. (3) The plaintiff is estopped. The plaintiff received $ 250 for the deed to his property which deed was recorded in 1919, and no return of the money so received has been made. (4) Deeds to the property are recognized as not being an unusual way to dedicate land. Poage v. Oser, 6 S.W.2d l.c. 1009; Whyte v. St. Louis, 153 Mo. 80, 54 S.W. l.c. 481. (5) No authority is contained in the statutes for a suit to quiet title against a city involving a city street. (6) The appellant owning property adjacent has a right to have the street remain open, though he may have other ways of reaching the property. Bell v. Walkley, 27 S.W.2d l.c. 456; Ellis v. Ry. Co., 131 Mo.App. l.c. 399, 111 S.W 839; Longworth v. Sedevic, 165 Mo. l.c. 231, 65 S.W. 260; Glaessner v. Brewing Assn., 100 Mo. 508, 13 S.W. 707. (7) The declaratory judgment law has no application when a statute provides a complete remedy. Liberty Mutual Ins. Co. v. Jones, 169 S.W.2d l.c. 122; State ex rel. v. Terte, 131 S.W.2d l.c. 589.
Luman Spry and Frederic A. Culmer for respondent.
(1) Cities of the fourth class may sue and be sued, implead and be impleaded, defend and be defended, in all courts of law and equity, and in all actions whatsoever. Secs. 1684, 7096, R.S. 1939; Hatton v. St. Louis, 175 S.W. 888; Troll v. St. Louis, 168 S.W. 167. (2) The attempted dedication of land for public purposes, where the purported dedicator is not the owner of land, is void. Granite Bituminous Paving Co. v. McManus, 129 S.W. 448, Id., 148 S.W. 621; Milling Co. v. Riley, 34 S.W. 837. (3) No common-law dedication of said strip of land in issue was effected. Where the owner of land constructs a road for his own use, mere use by the public by sufferance will not show dedication, or vest any title or right in the public or any citizen thereof. Field v. Mark, 28 S.W. 1004; Vosen v. Dautel, 22 S.W. 734; Brink v. Collie, 56 Mo. 160; Stacy v. Miller, 14 Mo. 478. (4) Respondent owned at all times the said strip of land in issue by warranty deed. Respondent's chairman of Board prepared in anticipation of sale a quitclaim deed, May 8, 1916, which said deed is null and void. It was never attested as required by law and the order of the Board of Curators. It is without the corporate seal. It is notarized as to the imposition of the corporate seal which is in reality absent. Equity follows the law of written instruments. Consideration failed. Secs. 2790, 2799, 3001, R.S. 1939; Perry v. Price, 1 Mo. l.c. 649; Strother v. Barrow, 151 S.W. 960; Albers v. Acme Paving Co., 194 S.W. 61; Church v. Berryman, 261 Mo. 73. (5) A street must be opened by ordinance or resolution to be used and improved as a street by a municipality. The purported deed dated May 8, 1916 contains the statement: "To have and to hold the same with all the rights, immunities, privileges and appurtenances thereto belonging unto the said City of Fayette, for the purpose of establishing and maintaining a public highway or street on said land hereby conveyed forever." Respondent contends that this use for which said deed was made purportedly, failed for want of acceptance by the City of Fayette, speaking through its ordinances. No ordinance of acceptance was passed by the City. Hunter v. Weston, 111 Mo. 176, 19 S.W. 1098; Myers v. Robb, 185 Mo.App. 685, 171 S.W. 600. (6) The R. N. Chancellor land, adjacent to the strip of land in question, had a deed of trust put on it November 1, 1915, in favor of appellant's father, H. C. Shields. After appellant's father's death, appellant and his brother had a renewal deed of trust put on the Chancellor land on May 10, 1929. Appellant foreclosed this last deed of trust, and became the purchaser of the Chancellor land on November 6, 1941. This foreclosure dissolved the Chancellor Plat, and the land contained in said plat became "Acre Property" or "farm land." Also the strip of land in issue, because of said foreclosure no longer fulfilled its purpose set out in the purported deed dated May 8, 1916, supposedly made by the respondent to the City of Fayette, was vacated, the intended use of said strip coming to an end. Granite Bituminous Paving Co. v. McManus, 129 S.W. 448, Id., 148 S.W. 621; Rosenberg v. Miller, 61 Mo.App. 422. (7) If the strip of land in issue had been legally conveyed to the City of Fayette, though we contend it was not, respondent contends that under the facts and the law of the case, it would still revert to the respondent. Gaskins v. Williams, 139 S.W. 117; Kennard v. Eyerman, 261 Mo. 1; Goode v. St. Louis, 113 Mo. 257; Porter v. Int. Bridge Co., 200 N.Y. 234; Klein v. Reinhardt, 163 Ill.App. 257. (8) Respondent used due diligence in bringing its suit, as soon as discovery had been made of adverse claims against it. The defense of laches is not applicable to the claim of legal title. Appellant is a stranger to the deed of May 8, 1916, purported, and cannot plead estoppel. Kellogg v. Moore, 271 Mo. 190, 196 S.W. 15; Walls v. Mays, 210 S.W. 871; Hunt v. Searcy, 167 Mo. 158, 67 S.W. 206; Development Co. v. Clayton, 281 Mo. 221, 219 S.W. 601; Deal v. Lee, 235 S.W. 1053. (9) The City of Fayette defaulted, and judgment was rightly rendered against it, in the circuit court. Appellant's rights and interests, if any, in and to said strip of land disappeared when this default judgment was rendered against the City. He derived his rights and interests, if any, through the City's rights and interests. Laclede Land & Imp. Co. v. Creason, 175 S.W. l.c. 57; Sec. 1239, R.S. 1939; Brown Const. Co. v. McArthur, 139 S.W. 104; St. Louis v. Long, 33 S.W. 54. (10) A declaratory judgment rests in the sound discretion of the court, considering the circumstances, and the court did not err in finding judgment by the use of the Declaratory Judgment law. O'Meara v. N.Y. Life Ins. Co., 169 S.W.2d l.c. 116. (11) The Statute of Limitations does not run against the respondent, but it does run against the appellant. Monevallo v. School Dist., 186 S.W. 1978; Sec. 1011, R.S. 1939.
Dalton, C. Bradley and Van Osdol, CC., concur.
Action to quiet the title to 86/100 of an acre of described real estate in Howard county. The petition is in two counts. The first count states a cause of action at law to quiet and determine title under Sec. 1684, R.S. 1939 and alleges that plaintiff's claim to ownership is based upon adverse possession for the period provided by Sec. 1002, R.S 1939. The second count states a cause of action in equity under Sec. 1684, R.S. 1939 to quiet title and remove cloud on title. Plaintiff, in this count, claims title by a direct conveyance to it and seeks to have a certain right of way deed of plaintiff, and a plat filed by another, declared void and the cloud thereof removed and title quieted in plaintiff. Both counts were tried to the court in one hearing. The court found the issues for plaintiff and entered judgment, but the only relief granted was the quieting of the title in plaintiff, to wit, that defendants "have no interest in and to the land in question, and that title thereto is vested in the plaintiff." Defendant Shields has appealed. A detailed statement of the pleadings, issues and findings of the court appears in an opinion of Kansas City Court of Appeals transferring the cause to this court. Curators of Central College v. Shields (Mo. App.), 182 S.W.2d 792.
Plaintiff and one Robert N. Chancellor were the owners of adjoining lands in the City of Fayette and both properties abutted on Mulberry street. Plaintiff had acquired its property by deed in 1911. In 1915 Mr. Chancellor desired to plat and open up his lands as a subdivision of the city. He wanted an additional entrance from Mulberry street, so that Chancellor street, as proposed, would extend from Mulberry street across his and plaintiff's properties and re-enter Mulberry street. The minutes of the Board of Curators of Central College, for June 7, 1915, show a report of a committee to the effect that Mr. Chancellor wanted this strip of land; and that the committee recommended a sale of the land for street purposes. It is the title to this tract or right of way that is now in dispute.
On November 1, 1915, and, prior to the execution of any right of way deed by plaintiff or any arrangement for the payment of the agreed consideration, Chancellor and wife executed a deed of trust on the real estate proposed to be subdivided to secure the payment of $ 4000 to defendant's father. Although now disputed, the parties stipulated at the opening of the trial that the property described in this deed of trust included the 86/100 acres of land in controversy.
On May 8, 1916, Mr. Chancellor procured from plaintiff a deed to the right of way in dispute, but the deed was made to the City of Fayette. The deed recited a consideration of one dollar and quit claimed the described land, as a right of way "for the purpose of establishing and maintaining a public highway or street." The deed was signed and acknowledged by John A....
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