Lyon v. City of St. Louis

• Decision Date: 01 June 1915
• Docket Number: No. 17282.,17282.
• Citation: 178 S.W. 96
• Parties: LYON v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

178 S.W. 96

LYON v. CITY OF ST. LOUIS.

No. 17282.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Rehearing Denied June 30, 1915.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by J. Denniston Lyon against the City of St. Louis. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff instituted this suit in the circuit court of the city of St. Louis against the defendant under section 2535, R. S. 1909, to ascertain and determine title to a certain strip of land described in the petition known as Clara avenue. The trial resulted in a judgment in favor of the defendant, and the plaintiff duly appealed the cause to this court. The facts are practically undisputed, and are stated substantially as follows, by counsel for respondent:

This suit was brought to determine the title to a strip of land which appears upon the public records as a part of Clara avenue. This strip of land was condemned in the condemnation suit of City of St. Louis v. Edward J. Wynne et al. In the original case of City of St. Louis v. Wynne et al. Clara avenue was condemned from the Natural Bridge road south to Easton avenue, and included much more land than is shown upon this record. The condemnation suit of City of St. Louis v. Wynne et al. was filed on September 7, 1894, in pursuance of Ordinance 17745, approved July 31, 1894. Final judgment in that suit was entered on November 24, 1896, and by Ordinance 18842, approved March 11, 1897, the municipal assembly appropriated $11,740 to pay the damages awarded by the final judgment.

At the time the Wynne case was commenced Charles J. Clarke was the beneficiary of a deed of trust upon the land in question, which is shown on the map introduced in evidence as the property of the Progressive Realty Company. That company then owned lots 33, 34, and 35, fronting upon the south side of Natural Bridge road, and corresponding with city blocks, 4361, 4362, and 4363, as shown upon said map. The plaintiff claims title as the devisee of Charles J. Clarke, who purchased the land in foreclosure proceedings to enforce the loan of the deed of trust before mentioned, in which John V. Hogan was the trustee. It is claimed that, as Charles J. Clarke was the beneficiary in the deed of trust, he was a necessary party in the condemnation suit. The trustee in the deed of trust was properly served. Charles J. Clarke was served by an order of publication. He subsequently purchased the land under said foreclosure proceedings, and left the property by will to the plaintiff. The plaintiff's rights are thus derived through the said Clarke. It is claimed now that the interests of Clarke were not taken in the condemnation suit because of the alleged insufficiency of the said order of publication.

After the death of Clarke, there is nothing shown by the record in regard to the case until the city of St. Louis filed suit upon certain special tax bills which had been issued in accordance with the report of the commissioners appointed to assess damages and benefits in the Wynne case. This suit to collect the taxes was known as City of St. Louis v. Clarke, Painter, et al. The plaintiff in this case, J. Denniston Lyon, was a defendant in the case of City of St. Louis v. Painter, and filed an answer which denied that any one but himself and his cotrustee had any interest in the property. That suit was brought to recover the amount of two special tax bills for $1,008 each, assessed by said commissioners against said property in said condemnation proceedings, but at that time the city was indebted to the Progressive Realty Company on account of the damages assessed by said commissioners in said proceedings by reason of the taking of a portion of its land for Clara avenue in the sum of $1,920. After these assessments had been made it was ascertained that a balance of $96 was due the city in...