Moberly v. City of Trenton

• Decision Date: 25 May 1904
• Parties: MOBERLY v. CITY OF TRENTON.
• Court: Missouri Supreme Court

81 S.W. 169

181 Mo. 637

MOBERLY v. CITY OF TRENTON.

Supreme Court of Missouri, Division No. 2.

May 25, 1904.

EQUITY — JURISDICTION — ENFORCEMENT OF FORFEITURES — TRIAL — FINDINGS OF FACT — TIME FOR REQUEST.

1. An action to recover land, and praying that a deed thereto be canceled as a cloud on plaintiff's title, on the ground that the conveyance was on a condition subsequent which had not been complied with, so that the estate of the grantee was forfeited, was not an action to remove a cloud on title, although it was called such, but was an action to declare a forfeiture, which a court of equity would not entertain.

2. A request that the court make separate findings of facts, not made until after judgment had been rendered and a motion for a new trial overruled, came too late, and was properly refused.

Appeal from Circuit Court, Grundy County; J. W. Peery, Special Judge.

Action by Margaret B. Moberly against the city of Trenton. From a judgment for defendant, plaintiff appeals. Affirmed.

Hall & Hall, for appellant. O. G. Williams and O. G. Bain & Son, for respondent.

VALLIANT, J.

The plaintiff sues to recover 20 acres of land in the city of Trenton which formerly belonged to her husband, George W. Moberly, now deceased, and which in 1882 he conveyed to the city by deed of gift for the purpose of making it a public park. The plaintiff, as wife, joined in the deed. Immediately following the granting clause in the deed is the following: "Upon condition that said town of Trenton shall improve and forever use said tract of land as a public park." There were other requirements in the deed under that head, which are not material to be now considered. Geo. W. Moberly died in 1886, leaving a will in which no mention was made of this land, but the plaintiff was made residuary legatee and devisee of all his estate not otherwise disposed of. The petition is in two counts. In the first count the plaintiff states that the defendant city has failed to perform the condition on which the deed to the city was made, in that it has failed to improve and use the land for a park, and has abandoned it, and has allowed it to become not only inattractive as a public park, but a place of resort for people of bad character; that by reason thereof, "and by reason of the abandonment of said tract of land by this defendant, said deed and conveyance are no longer binding and of effect, and said tract of land has become and is forfeited to this plaintiff"; that the plaintiff has given notice to the defendant city that the land has reverted and become forfeited to her as residuary devisee, and has demanded possession, which has been refused; that, under the circumstances, the deed from her husband to the city has become a cloud on her title. The prayer is that she be given possession and $50 damages; that the deed be canceled as a cloud on her title; "that said land be declared forfeited to this plaintiff; that all right, title, and interest therein be vested in the plaintiff, and for all other proper orders, judgments, and relief." The second count is in the form of an action in ejectment. The answer is a general denial, and a plea that there is another suit by this plaintiff against this defendant now pending in the Supreme Court on appeal from the same circuit court on the same cause of action, seeking the same relief as in this suit. Reply, general denial. The cause was submitted to the court on the pleadings and proof — jury waived. There was a general finding for the defendant on the issues of fact, and a judgment accordingly, from which the plaintiff appeals.

On the trial the evidence for the plaintiff tended to sustain the allegations in the petition regarding the failure of the defendant to make suitable improvements on the premises to fit it for a park, and also to sustain the allegations that it had become unfitted and unused as a park, and allowed to be used as a resort for improper characters. The evidence for the defendant tended to show the contrary. The evidence on the main issues of fact was conflicting. There were no instructions asked or given, and no exceptions taken to any ruling of the court during the trial. At least, our attention has not been called to any such exception in the assignment of errors. After the court had announced its finding and judgment, and after the plaintiff's motion for a new trial had been overruled, the plaintiff requested the court to make a special finding of the facts distinct from the conclusions as to the law, but the court declined to do so on the ground that the request had not been made in due time.

The case is argued before us on the theory that the first count in the petition is a suit in equity,...