McIndoe v. City of St. Louis

• Decision Date: 31 March 1847
• Citation: 10 Mo. 575
• Parties: MCINDOE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

10 Mo. 575

MCINDOE

v.CITY OF ST. LOUIS.

Supreme Court of Missouri.

March Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

SIMMONS, for Plaintiff. It is an inflexible rule, to which there is no exception, that in an action of ejectment it devolves upon the claimant to show a good and sufficient legal title to the premises sought to be recovered. If there be any weakness or defect in the claim of the defendant, the plaintiff will not be assisted by it. Adams on Ejectment, 28, 285; 9 Johns. 55; 4 Johns. 483; 2 Overton, 185, 334; 3 Watts, 95, 151; 1 Marsh. 251; 6 Binney, 434; 3 Litt. 25; 8 Cowen, 543; 6 Wend. 666; 5 Wend. 572; 3 Serg. & Rawle, 283; Tomlin's Law Dic. 617.

KNOX, for Defendant. 1. The judgment of the St. Louis Circuit Court, which the defendant seeks to reverse, is not a final judgment, and that no writ of error lies to reverse the same. Rev. Stat. of 1845, p. 901; 3 Wheat. 433, Houston v. Moore. 2. That ordinance No. 1494, authorizing the purchase of the lot in question, was not “a tax bill,” nor “a bill appropriating the sum of five hundred dollars or upwards,” nor “a bill in any wise increasing or diminishing the city revenue,” and did not require for its passage a majority of all the members elected of each board of the city council, as is provided in city charter, article 2nd, § 21. 3. If the said ordinance No. 1494 did require a majority of all the members elected of each board, the defendant, McIndoe, cannot avail himself in this action of the alleged irregularity in the passage of said ordinance, and the judgment of the Circuit Court, in reversing the decision of the St. Louis Court of Common Pleas, for admitting the evidence upon this subject, was not erroneous. 4. The legal title to the lot of ground in question was vested in the plaintiff, the city of St. Louis, by the deed from A. Valle and wife, even if the bonds issued by said city for the same were absolutely void.

NAPTON, J.

This was an action of ejectment brought by the city of St. Louis to recover a lot of ground in possession of the defendant. The suit was first tried in the Court of Common Pleas, where the plaintiff suffered a non-suit, and upon failing to have the non-suit set aside, the case was removed by writ of error to the Circuit Court. The trial in this court resulted in a verdict and judgment for the plaintiff. The property originally belonged to the estate of Therese Cerre Chouteau, deceased, and was sold by her administrator to one Amade Valle, who conveyed the same by deed to the city of St. Louis. The defendant had occupied the premises for some time previous to the commencement of the suit, as a tenant under the administrator of Mrs. Chouteau's estate. The defense set up in the court below was, that this lot or part of a block was purchased, or attempted to be purchased, by the city authorities, at the price of fifty thousand dollars, by virtue of an ordinance of the city, entitled “An ordinance authorizing the purchase of a part of Block No. 7;” and that this ordinance was a nullity, because it had not passed the board of aldermen by the number of votes required by the charter to pass “a tax bill” or “a bill appropriating for any purpose a sum of five hundred dollars or upwards, or a bill increasing or diminishing the city revenue.” This defense not availing the party in the court below, the case is brought here by writ of error.

The counsel for ...