Ells v. Pacific R.R.

• Decision Date: 31 January 1873
• Citation: 51 Mo. 200
• Parties: WM. M. ELLS and CLEMENCE ELLS, his wife, Respondents, v. PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

51 Mo. 200

WM. M. ELLS and CLEMENCE ELLS, his wife, Respondents,

v.PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Cooper Circuit Court.

Hayden & Tompkins, for Respondents.

The judgment of condemnation in this case is void, and may be attacked collaterally. See the following authorities: (Boswell's Lesses vs. Otis, 9 Howard, 336; same case, 18 Curtis, S. C., 168; Harris vs. Hardeman et al., 14 Howard, 334 and authorities cited; same case, 20 Curtis, U. S., 206; Fithian vs. Monks, 43 Mo. Rep., 520, 521, 522 and the numerous authorities cited; 44 Mo., 540; City of Boonville vs. Omrod's adm., 26 Mo., 193; Cooley on Const. Lim., p. 17, notes and authorities cited; Dillon on Municipal Corporations, §§ 468, 469, 470 and notes, and § 471; Janney vs. Spedden, 38 Mo., 395; 49 Mo., 361; Id. 155.)

SHERWOOD, Judge, delivered the opinion of the Court.

This is an action of ejectment brought in the Cooper Circuit Court, by Ells and wife against the Pacific Railroad, to recover possession of the south part of Lot 167 in the city of Boonville.

Both parties claim under James H. Lucas as the common source of title.

The answer of defendant, after a plea of the general issue, sets up an alleged equitable defense, to the effect that the whole of lot 167 had been p rchased of James H. Lucas and Anne L. Hunt, for $500 by the Osage Valley & Southern Kansas Railroad Company, during the pending of proceedings on the part of said Company, as early as September, 1868, to have said lot condemned for a depot, and that under such purchase and with the knowledge of Ells the plaintiff, who is charged in the answer to have been the agent of Lucas and Hunt in making the contract, the O. V. & S. K.R. R. Co., took possession of said lot and erected valuable and lasting improvements, etc.; that defendant is the lessee of said O. V. & S. K. Co.; that Lucas was notified in writing of these proceedings to condemn, that the purchase money had been offered to Ells, the agent, but neither Lucas nor Ells had made or caused to be made, a deed for said lot.

There was a reply to this answer which denied its chief allegations, but failed to deny however, that Lucas was notified in writing, of the proceedings to condemn, or that the purchase money was offered to be paid.

Upon the trial of the cause by the court, the defendant, in order to support the plea of the general issue, read in evidence the judgment of condemnation of the whole of lot 167, in favor of the O. V. & S. K. Railroad Co. and against James H. Lucas. That judgment (which is without date, but purports to have been rendered by the Cooper Circuit Court,) is in these words:

“Osage Valley and Southern Kansas Railroad Company, against James H. Lucas.

Now at this day this case coming on to be heard, the same is submitted to the court on the petition of plaintiffs, and proofs, and the court being satisfied that notice of this proceeding was duly served on said defendant, and that the commissioners appointed for that purpose have discharged their duty according to law, in viewing the lot through which the railroad of plaintiff passes, and that said commissioners have filed their report and plat, in the office of the clerk of this Court, and no valid objection appearing to said report, the same is now here approved, and judgment is hereby rendered against said company, and in favor of said defendant, James H. Lucas, for the amount of damage, and the value of said lot assessed therein in said report, viz.; five hundred dollars, and all costs of the proceeding, and an order and decree is now here made and rendered by this Court, vesting in said company and their successors and assigns forever, the fee simple title of the lot in said plat and report described as follows: viz., lot 167 fronting 90 feet on Morgan St. and 150 feet along Second St., and is situated north of Morgan Street in the city of Boonville, County of Cooper, and through and over which said Railroad passes; and which said title shall vest as aforesaid upon the payment of the said five hundred dollars to the said James H. Lucas.”

The act incorporating the Osage Valley & Southern Kansas Railroad Company is found in the Session Acts of 1857, pp. 59 to 63 inclusive. Sections 9 and 10 of that act, point out the mode to be pursued for the condemnation of land. Section 9 provides, “If any owner of any tract of land, through which said railroad shall...