McShane v. City of Moberly

• Decision Date: 31 October 1883
• Citation: 79 Mo. 41
• Parties: MCSHANE v. THE CITY OF MOBERLY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 41

MCSHANE

v.THE CITY OF MOBERLY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Moberly Court of Common Pleas.--HON. GEO. H. BURCKHARTT, Judge.

AFFIRMED.

Hollis & Wiley with Ben. T. Hardin for appellant.

H. S. Priest for respondent.

PHILIPS, C.

This is an action of ejectment, brought by McShane, respondent, against the city of Moberly, to recover possession of a tract of land claimed by defendant to be a public street in one of the additions to said town.

The case was tried on the following agreed statement of facts: (1) That the abstract of title hereto attached and marked “A,” is a correct exposition to the title in controversy.(2) That the property in controversy is a street, as shown, of Burkholders's second addition to Moberly and W. W. and J. P. Porter's addition to Moberly, filed for record February 1st, 1873, and March 1st, 1873, as shown by abstract.The dedication was accepted by defendant and said street was improved and has been in use by the public ever since.(3) That the parties dedicating were the owners and proprietors of the land dedicated, subject to a deed of trust to M. Y. Buchanan, trustee for C. C. Buchanan, as shown by said abstract.(4) That M. Y. Buchanan and C. C. Buchanan knew of the dedication and filing of the plat, and made no objection then or since.(5) That said land was sold in July, 1875, under the said deed of trust to M. Y. Buchanan, trustee for C. C. Buchanan, and D. B. White and H. Sam Priest became the purchasers at the sale, and afterward deeded the same land to this plaintiff; all parties knowing said land was dedicated, accepted and used by the public as a street.But White and Priest have never done or said anything at the time nor since their purchase at said sale under the deed of trust to M. Y. Buchanan, trustee, that would estop them from claiming the street if they ever had any right to it.

As the case was submitted on the agreed statement of facts to the court without a jury, it will not be necessary to incorporate in this opinion the declarations of law requested.The court found the issues for the plaintiff, and defendant brings the case here on appeal.

1.DEDICATION: public use. donor must be absolute owner.

I.When Buchanan took his deed of trust from Young the land in question had not been laid off into lots and streets, nor had any steps been taken looking to its dedication to the public.The legal title was, pro forma, vested by the trust deed in the trustee, subject to be defeated and re-invested in the mortgageor by payment of the debt.Burkholder and others, in purchasing from Young, took the estate cum onere.They acquired the equity of redemption.In a sense the mortgagee was a purchaser for value, and acquired whatever right, title and estate the mortgageor had at the time of the execution of the mortgage.It was not in the power of the mortgageor, after making the mortgage, to do any act which could impress or alter the condition of the estate conveyed, to the injury of the mortgagee.Funkhouser v. Lay,78 Mo. 458.And the purchaser at the foreclosure sale acquired whatever right, title and estate in and to said land the mortgageor had, or the mortgagee acquired under the mortgage.

Burkholder and others, as the owners of the equity of redemption, had a right to grant an easement on or to convey the property to whom they pleased, so far as their own interests were concerned.“A dedication of property for public use is in the nature of a conveyance for the purpose of the use; but a person can convey or donate no more or greater title than he holds.If he holds no title, or his title is conditional, and it fails, the dedication fails.This is axiomatic.”Gridley v. Hopkins,84 Ill. 530.

The case of the People v. Herbel,96 Ill. 384, presents a state of facts quite analogous, differing only in the fact that the cestui que trust became the purchaser at the foreclosure sale.There, as here, between the date of the mortgage and the foreclosure, the mortgageor conveyed to one Henderson, who platted the land into lots and streets, as an addition to East Carondelet.The court says, page 383: “There can be no question that Henderson's purchase was subject to the deed of trust, and had the land been purchased by a stranger to the title at the trustee sale, that all of Henderson's right would have been extinguished, as well his title as his plat.One person cannot plat the land of another.That can be done only by the owner, so as to be legally binding; and Henderson was not the owner of the title, but simply of the equity of redemption.He, therefore, had no power to dedicate streets, alleys or grounds to the public, so as to affect the purchaser at a sale under the trust deed.Hence, his plat was subject to be avoided and vacated by such a sale, and clearly would have been, had a stranger to the title become the purchaser.”

As is suggested in the foregoing opinion, no one but the absolute owner can dedicate land to public use so as to pass the fee unconditionally.2 Greenleaf Ev., 663;City of Hannibal v. Draper,36 Mo. 332.In Ward v. Davis, 3 Sandf.(N. Y.) 513, Duer, J., expresses this doctrine in strong terms: “It is needless to cite authorities to prove that an absolute and final dedication of lands to a public use, can only be made by the owner of an absolute fee.It is a self-evident truth that he can only devote his real estate in perpetuity to the use of the public, who is competent to convey a fee by a perfect and...