Jamison v. Fopiana

• Decision Date: 31 March 1869
• Citation: 43 Mo. 565
• Parties: WILLIAM C. JAMISON et al., Appellants, v. GITIANO FOPIANA et al., Respondents.
• Court: Missouri Supreme Court

43 Mo. 565

WILLIAM C. JAMISON et al., Appellants,

v.GITIANO FOPIANA et al., Respondents.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for appellants.

“The deed of the corporation of St. Louis, under the corporate seal, implies the authority of the officer executing it.” (1 Ky. 268; 15 Wend. 25; 6 S. & R. 12; 13 Halst. 183; 4 Yerg. 7; Swartz v. Page, 13 Mo. 63.)

H. A. Clover, for respondents.

The plaintiff failed in his chain of title by omitting to read in evidence or offering in evidence the deed of Miss Lami to Michael S. Cerre, whereby it would be made to appear that he, Michael S. Cerre, was the legal representative of Miss Lami, and that the mayor had authority to make the deed in evidence to Mr. Cerre.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment to recover three acres of land situated in the county of St. Louis, in the St. Louis commons, and being the western part of what is known as the Lami tract. The petition contained a simple count in ejectment. The answer denied the allegations in the petition, and, in addition, set up the statute of limitations as a bar to plaintiff's recovery. The plaintiff deduced title from the city of St. Louis, and on the trial read in evidence a deed from the city, executed by the mayor under the seal of said city, to Michael S. Cerre, purporting to convey the land in controversy, under a compromise sale, in pursuance of a resolution of the city council approved December, 1840. He also offered and read in evidence a deed from Cerre and wife to Hardage Lane, and the will of Lane, from which he derives title.

The resolution of the city council was also submitted in testimony, by which the mayor was authorized to compromise with the legal representatives of Miss Lami for the title of the city of St. Louis to the tract of land called the Lami tract, at $20 per acre, and to make and execute a deed accordingly.

At the close of the plaintiff's testimony, the court, at the request of the defendant, instructed the jury that the plaintiff was not entitled to recover. Plaintiff then took a non-suit, with leave to move to set the same aside; and, upon refusal to set the same aside, the case was appealed to this court.

It is insisted by the counsel for defendant that the plaintiff cannot prevail in this action, because the resolution directed the mayor to execute a deed to the legal representatives of Miss Lami, and that he made the conveyance to Michael S. Cerre; and that, as no proof was given to show that Cerre was her representative, or that any connection existed between them, it was a defective or void execution of the power.

The deed does not state that Cerre was the legal representative of Miss Lami, but it recites that it was made under a compromise sale, in pursuance of the resolution of the city council, naming the date when the resolution was approved; and the question now is, what force and effect is to be given to it?

If it were conceded that the city of St. Louis, in...