Lewis v. City of St. Louis

• Decision Date: 30 April 1879
• Citation: 69 Mo. 595
• Parties: LEWIS v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

69 Mo. 595

LEWIS

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

E. Casselberry and Leverett Bell for appellant.

James Taussig and N. Holmes for respondent.

NORTON, J.

This cause comes here by appeal from the St. Louis court of appeals, and is an action of ejectment, commenced by Simon E. Lewis in the circuit court of St. Louis county, against the city of Carondelet, in 1860, for the recovery of lot 16, in survey No. 2, of the common of Carondelet, north of the river Des Peres, in said county, containing nine arpents and forty-nine hundredths. The petition is in the usual form, and the answer contains a general and a specific denial of the allegations therein In 1870, by virtue of an act of the General Assembly, the city of Carondelet became merged into the city of St. Louis, and in April, 1870, the city of St. Louis, on its own application, was substituted as defendant. The death of Simon E. Lewis having been suggested in September, 1873, the present plaintiffs, on the 3rd of April, 1874, were substituted, as the legal representatives of said Lewis, as plaintiffs in his stead. Upon a trial of the case by the court, judgment was rendered for plaintiffs, from which defendant appealed to the St. Louis court of appeals, where, upon trial, the judgment of the circuit court was affirmed, from which the defendant has appealed to this court.

Plaintiffs, in support of their title and right to recover, offered in evidence a lease by Carondelet of the lot in question to Delphy Carlin, dated 19th day of July, 1843, and running ninety-nine years, for the yearly rent of $5.88, payable at the end of each and every year. The lease also contained, among other stipulations, the following: That if at any time the year's rent of any one year, or any part thereof, should remain unpaid six months after due, the board of trustees of the town of Carondelet might, by order or resolution, to be entered of record among the acts and proceedings of said board, declare such lease void; whereupon said lease should determine and end, and the trustees might enter and take possession of the demised premises. The plaintiffs also offered evidence showing the assignment of this lease to one Grimsley, and by him to Brownlee, and by Brownlee to Simon E. Lewis, whose descendants and representatives plaintiffs claim to be. Plaintiffs also offered in evidence a certified copy of a will of Simon E. Lewis, dated in 1870, a copy of the probate thereof, and an alleged copy of letters testamentary, all from the probate court of Grant county, State of Wisconsin. This evidence was objected to on the ground that neither the will, nor a duly certified copy thereof, had been filed or recorded in St. Louis county. The objection was overruled, and the evidence received. Plaintiffs also offered evidence tending to show that the plaintiffs were the children and representatives of the said Simon E. Lewis.

The first eight sections of said will made various bequests, and the ninth provided that after all the bequests were complied with, the remainder of his estate should be equally divided between his wife and children and their descendants, and nominated his wife, Mary C. Lewis, and his son, John S. Lewis, as his executors, empowering them to sell, dispose of and convey any and all real and personal property which they might deem necessary in the settlement of his estate. Plaintiffs also offered in evidence a deed to the property in dispute, dated November, 1874, from Mary C. Lewis and John S. Lewis, executors of Simon E. Lewis, to the plaintiffs in this suit. This deed was objected to on the ground that the acknowledgment was defective, and that it had never been recorded, and was irrelevant.

The evidence on the part of the plaintiffs tended to show that on the 19th day of January, 1858, one Barth, the agent of Lewis, offered to pay to the collector of Carondelet all that was due from Lewis on the lot of land in controversy; that he paid the sum of $14, all that was demanded, and supposed that it included rent as well as taxes, but on subsequent examination of the receipts given him, it only covered the taxes. Plaintiffs also offered evidence showing a tender to the proper officer of the city, in the fall of 1858, of all rent due on said property from Lewis, which was not received, because of an alleged forfeiture of the lease which had been taken.

The defendant, on its part, offered in evidence a certified copy of the resolution of the council of the city of Carondelet, of date May 10th, 1858, in substance declaring that the rents reserved upon various leases (of which the lease to Carlin was one) are in arrear, and have been unpaid for six months since the same became due and payable, and still remain unpaid, and resolving that the said leases be, and they are, declared void. Said preamble and resolution, closing with the words above mentioned, were adopted by the council, and the mayor of the city approved and signed the same. The defendant read in evidence what purported to be a copy of the foregoing preamble and resolution, which concluded with the words: “Approved May 10th, 1858. Michael Chartrand, Mayor.” The above copies were objected to on the ground that they were not true exemplifications of the record, which was offered to be established by comparison with the original record book of the proceedings of the council then in court. The objection was overruled, subject to the right of plaintiffs to impeach the same. The defendant also offered in evidence a certified copy of a resolution of the council, of date November 13th, 1866, forfeiting a number of leases...