Dausch v. Crane

• Decision Date: 14 March 1892
• Citation: 19 S.W. 61,109 Mo. 323
• Parties: Dausch, Appellant, v. Crane
• Court: Missouri Supreme Court

19 S.W. 61

109 Mo. 323

Dausch, Appellant, v. Crane

Supreme Court of Missouri, First Division

March 14, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

E. P Johnson and R. F. Wingate for appellant.

(1) Sophia White had an unimpeachable record title to the premises in dispute. (2) She also had a clear title of adverse possession for twenty years. (3) Instruction numbered 5, asked by appellant, in regard to the execution of the Sophia White paper, should have been given, as it asserts a correct legal proposition, and there is ample testimony on which to base it, and which shows that Mrs. White's signature was obtained by at least moral duress sufficient to vitiate it. Davis v. Luster, 64 Mo. 43; Maguire v. Savings Ass'n, 62 Mo. 344; Smith v Paris, 53 Mo. 274. And it was also fraudulently obtained so as to vitiate it. Martin v. Bonsack, 61 Mo. 557; Mattison v. Ausmuss, 50 Mo. 551; Crispen v. Hannovan, 50 Mo. 548; Goff v. Roberts, 72 Mo. 572; Higgins v. Turner, 61 Mo. 249; Wright v. McPike, 70 Mo. 175; Allen v. Mansfield, 82 Mo. 688; Loring v. Harmon, 84 Mo. 123. (4) Instruction, numbered 5, given for respondent, is erroneous and misleading in assuming, contrary to all of the testimony of both respondent and appellant, that Fritz Walkenhorst, under the instrument bearing his name, never surrendered the possession of the premises in dispute to Tiffany or those claiming under him, and that he attorned to Millard while he was Tiffany's tenant, and instructs the jury that if he built a fence around them by direction of Millard under these circumstances, the fence and possession inured to the benefit of Tiffany and the Dillon estate.

Lee & Ellis for respondent.

(1) There was evidence that the property lies in the Mackay tract. (2) The deed was prima facie evidence that all prerequisites for exercise of the power had been complied with. Wells v. Pressy, 105 Mo. 164, 179, and cases there cited (3) The resolution of the board of aldermen of date April 2, 1836, authorized this deed. (4) There was no evidence which would constitute duress per minas, as to Mrs. White's document surrendering possession. Murdock v. Lewis, 26 Mo.App. 242; Holmes v. Hill, 19 Mo. 159; Claflin v. McDonough, 33 Mo. 412; Davis v. Luster, 64 Mo. 43; 9 Mo. App.; Buchanan v. Sahlem, 9 Mo.App. 552. (5) There was no evidence which would constitute duress of property. Silliman v. United States, 101 U.S. 470; Hackley v. Headley, 45 Mich. 43; Skeate v. Beale, 11 A. & E. 983; Preston v. Boston, 12 Pick. 14; Miller v. Miller, 68 Pa. St. 486; Emmons v. Scudder, 115 Mass. 372. (6) Nor does the evidence constitute a case for equitable relief, citing arguendo: Dailey v. Jessup, 72 Mo. 144; Faust v. Birner, 30 Mo. 414, 419. (7) The subsequent deed, twenty months later, recognizing defendant's title, barred all complaint as to duress. Lyon v. Waldo, 36 Mich. 345; Bodine v. Morgan, 37 N.J.Eq. 426; Murdock v. Lewis, 26 Mo.App. 242; Davis v. Fox, 59 Mo. 134. (8) There was no evidence to conflict with the date fixed prima facie by the recital of the deed. (9) The instructions as to the meaning of the paper were legal, consistent and adequate. (10) The instruction that Walkenhorst could not while tenant surrender possession to Millard was correct. Farrar v. Heinrich, 86 Mo. 532. (11) With the other instructions it covered all the law on the point. (12) The instructions as to adverse possession in defendant were correct. (13) Appellant's instructions on this point removed all possibility of misunderstanding. (14) Appellant's instruction as to ten years' possession prior to February 22, 1857, was properly refused, because another instruction covered the point. (15) And because there was no evidence to support it. (16) There was no reason for granting an instruction as to the possibility of defendant's recovery for improvements in another suit. (17) The inventory of Mrs. White's estate was properly admitted as evidence on possession. (18) The burden of proof rested on plaintiff. (19) The instructions are to be considered as a whole. Karle v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323.

OPINION

Black, J.

This is ejectment in which there was a verdict and judgment for defendant. The property sued for is described as fifty-five feet on St. Ange avenue extending back two hundred and sixteen feet to a width of fifty feet on Linn street, and bounded on the north by Park avenue, in the city of St. Louis. It is part of a triangular piece of ground containing one and twenty-hundredths acres, bounded on the north by Park avenue, west by St. Ange avenue, east by Linn street, and is known as city block 822. This city block is located in the northwest corner of block 2 of Charles DeWard's survey of the St. Louis commons.

By the act of March 18, 1835 (2 Ter. Laws, p. 501) the mayor and aldermen of the city of St. Louis were authorized to sell the commons belonging to the inhabitants of the city at public auction, the purchaser to pay interest annually until the expiration of ten years, with the right to pay the principal at the end of that time and receive a deed in fee. This act also gives the mayor and aldermen power to settle and compromise with persons having claims within the commons, conflicting with the claim of the inhabitants.

The commons were laid off into blocks pursuant to this act by what is called the DeWard survey; and on the twenty-eighth of January, 1836, the city passed an ordinance for the sale of the commons, and in the same year provided by another ordinance that grantees or purchasers should have the right to be substituted in place of the original purchasers.

Besides the act of the legislature, the DeWard survey and these ordinances, the plaintiff introduced the following evidence: First, parol evidence tending to show that Isaac W. White purchased this triangle at a public sale in March, 1836, accompanied with proof that no written lease or memorandum of sale to him could be found; second, the will of Isaac W. White, probated in 1841, in which he states that he purchased the triangle, and that two of his sons were to pay the arrearages due and to become due therefor, and by which he devised the property to his wife for life, remainder to his children; third, a deed from the city of St. Louis conveying the triangle to Sophia White, dated eleventh of March, 1848 -- this deed does not set forth any recitals of a prior sale; the only recital being that the purchase price of $ 300 was paid by her; fourth, a deed from the children conveying the triangle to their mother, dated the thirteenth of May, 1853; fifth, the will of Sophia White, probated in December, 1858, and a deed by the executor of that will conveying the strip of ground in suit to Virginia Lount, one of the children of Sophia and Isaac White. This deed bears date the twenty-seventh of June, 1863, and was made pursuant to proceedings to which all the children were parties; sixth, proof that Virginia married Millard, and a deed from them to the plaintiff, dated in 1882, in trust for Virginia.

The defendant introduced the following evidence: First, a deed from the city of St. Louis to Frederick Dent, dated the fifteenth of March, 1837, conveying to Dent thirty-eight and fifty-four-hundredths acres of land; second, a deed from Dent to Patrick Dillon, dated October 26, 1837, conveying the same land; third, the will of Dillon, probated in 1851, devising his estate to Barton Bates in trust with power to lease and sell lands; fourth, a lease on the lot in suit from Bates, as trustee, to P. D. Tiffany, dated the first of January, 1857, for twenty years. This lease was surrendered to Bates, and by him accepted in 1875; fifth, a lease from Tiffany to Henry Prante, dated the twenty-ninth of January, 1857, extending to the first of January, 1860; also, a lease from Tiffany to Fritz Walkenhorst, dated the twenty-sixth of April, 1857, extending to the first of April, 1860. These two leases covered the property in suit; sixth, evidence showing the appointment of the present defendant as trustee in the Dillon will in the stead of Bates.

There was much other evidence produced by the one side and the other which will be noticed hereafter.

1. The plaintiff, it will be seen, holds under the deed from the city of St. Louis to Sophia White, dated the eleventh of March, 1848, while the defendant holds under the deed from the city to Dent, executed and recorded long prior thereto, to-wit, in March, 1837. It is conceded by the instructions given, at the request of the plaintiff, the appellant here, that if this Dent deed is valid, as to the land in suit, then it has priority over the deed to Sophia White. To show its invalidity the plaintiff produced evidence that, on the second of April, 1836, a committee on commons recommended a settlement with Dillon, and thereupon the board of aldermen passed this resolution: "That P. M. Dillon, George Morton and Frederick Dent, being the legal representatives of James Mackay, shall receive deeds for the land claimed by them, and which is within the survey of the commons, by their paying $ 20 per acre therefor."

Now the deed to Dillon, executed by John F. Darby, mayor, describes the thirty-eight and fifty-four-hundredths acres as being in the survey of the commons, and also in the Mackay claim, and professes to have been made pursuant to a compromise made under the act of the legislature before mentioned. On its face it is a valid conveyance. The specific objection made to it is that, in point of fact, the property in suit is not within the Mackay claim, and, hence, the mayor had no right, under the resolution, to convey it to Dent. The evidence shows beyond all doubt that the land in question is a part of the land described in the...