Sieferer v. City of St. Louis

• Decision Date: 30 November 1897
• Parties: Sieferer v. City of St. Louis, Appellant
• Court: Missouri Supreme Court

43 S.W. 163

141 Mo. 586

Sieferer v. City of St. Louis, Appellant

Supreme Court of Missouri

November 30, 1897

Appeal from St. Louis City Circuit Court.

Affirmed.

W. C Marshall for appellant.

(1) The circuit court erred in rendering judgment for plaintiff, and should have entered judgment for defendant. Kane v Railroad, 112 Mo. 34; Watson v. Railroad, 47 N.Y. 157; Wilson v. Hathaway, 42 Iowa 173; Brown v. County Com., 12 Metc. 208; R. S. 1889, secs. 2418 2419, 2420. (2) If a person acquires an interest after the commencement of the proceedings, he should be regarded as a purchaser pending the litigation, and bound by the judgment in which it results. Smith v. Ferris, 6 Hun. (N. Y.) 553; Tasker v. Small, 7 L. J. (Ch.) 19; Bird v. Railroad, 34 L. J. (C. P.) 366; Wiley v. Railroad, 18 L. J. (Ch.) 201; Brown v. Co. Comrs., 12 Metc. 208; Bell v. Cox, 23 N.E. 705; Stewart v. White, 11 S.W. 568; Railroad v. Helm's Heirs, 8 Bush. 681; Smith v. Railroad, 67 Ill. 161. (3) The circuit court erred in permitting evidence to be introduced of damage done to growing crops by the city when it took possession of the property as a part of Martin avenue. The prayer of the petition is for a judgment for possession, and for $ 500 damages and costs of suit. There is no issue tendered as to any damage that was done to growing crops, and therefore no such issue joined in the case. (4) The judgment of the circuit court assessing damages is excessive. There was absolutely no evidence upon which the court could predicate a judgment for damages for detention. No witness testified to the value of the withheld premises, nor, for that matter, to the value of any of the premises, except the value of the fence and the growing crops.

H. A. Loevy for respondent.

(1) This was a case triable by a jury. A jury was waived and no instructions were asked or given. Therefore the action of the trial court is not open for review. (2) The condemnation suit was a nullity. First. Because it does not appear affirmatively by the record that the circuit court, in term time, or a judge thereof in vacation, ordered issue of writ on filing of petition. This is jurisdictional. Charter, 2 R. S. 1889, p. 2120, secs. 2, 3. Second. Because the land sought to be condemned was not described in the petition therein. (3) None of respondent's objections to the evidence offered by appellant were ruled on by the court during the trial. The evidence was taken subject to objection, the objections to be passed on later. As the bill of exceptions and abstract do not show that the court at any time ruled on the objections, no exceptions were or could be saved; there is nothing to review except the points as to the damages. 1 R. S. 1889, sec. 2302; Hill v. Alexander, 77 Mo. 302. (4) As Matilda Mosberger, who was made party defendant as to the land in controversy, and through whom appellant claims, had no title thereto when the condemnation case was instituted, the judgment of condemnation passed no title to appellant. The proper defendant was a person having a title appearing of record on the "proper records" of the city. Charter, art. 6, sec. 2; Ib., R. S. 1889, p. 2120, sec. 2. Strictly speaking, the city has no "proper records;" the State furnishes those by means of its courts and recorder's office. (5) When one has sufficient information to lead him to knowledge of a fact he is conclusively deemed cognizant of it. Lee v. Bowman, 55 Mo. 403; Muldrow v. Robison, 58 Mo. 351; Meier v. Blume, 80 Mo. 184; Mason v. Black, 87 Mo. 341; Roan v. Winn, 93 Mo. 503; Loring v. Groomer, 110 Mo. 640; Hickman v. Green, 123 Mo. 185. (6) The sale to and receipt of purchase money from Teschemacher (shown by the probate court records) vested a good title in him, and the courts will presume the execution and delivery of a deed to him, because it is the usual course of business. Long v. Joplin Co., 68 Mo. 429. More especially because the statute says the executor should execute and deliver a deed to the purchaser. 1 R. S. 1889, sec. 168.

Gantt, J. Barclay, C. J., and Sherwood, Burgess, Macfarlane, Robinson and Brace, JJ., concur.

OPINION

Gantt, J.

This is an action of ejectment which was returnable to the circuit court of the city of St. Louis. It resulted in a judgment for plaintiff on January 12, 1895. The land in dispute is thirty feet of a tract containing ninety-three one-hundredths of an acre in block 3770 of the city of St. Louis, which the city claims to have condemned for a part of Martin avenue. The answer is a general denial.

Chronologically stated, the facts in this case are as follows:

First. In 1876 William A. Mosberger died, owning a tract of land amounting to ninety-three one-hundredths of an acre, of which the thirty foot strip here in controversy constituted a part.

Second. On May 18, 1876, the will of William A. Mosberger was filed for record in the probate court, which will bequeathed all of his property (except $ 1 each to his two children) to his wife, Matilda Mosberger, and her heirs forever.

Third. On the second of June, 1876, Matilda Mosberger qualified as the executrix under said will.

Fourth. On the fourth of October, 1878, the probate court ordered the real estate to be sold to pay the debts of the estate.

Fifth. On the eighth of March, 1879, Matilda Mosberger, executrix, filed her report of sale, showing that on the fourth Monday in November, pursuant to said order of sale, she sold the third parcel of land described in said order, being ninety-three one-hundredths of an acre (unimproved) and being land of which the thirty foot strip here in controversy constitutes a part, to Emil Teschemacher, for the sum of $ 150, and the probate court approved said sale.

Sixth. On the eighth of March, 1879, Matilda Mosberger, executrix, executed a deed to said land so sold to Emil Teschemacher (but said deed was not put on record until July 9, 1884, and defendant claims there is no evidence that this deed was ever delivered to him).

Seventh. On January 10, 1883, the city passed ordinance number 12,324, establishing Martin avenue from Duncan avenue to the New Manchester road, thirty feet wide, and ordering the city counselor to institute proceedings for this purpose.

Eighth. On the thirtieth of July, 1883, the city counselor instituted condemnation proceedings in the circuit court for the purpose of establishing Martin avenue, and Matilda Mosberger was made a party defendant, and was personally served by the city marshal. Thereafter, commissioners were appointed by the circuit court, who assessed the value of the thirty foot strip to be taken from the ninety-three one-hundredths of an acre aforesaid at the sum of $ 125, in favor of Matilda Mosberger, or the owner of a lot of ground situated in city block 2969, having a front of one hundred and seventy-five feet on Clayton road, by a depth of two hundred and seventy-two feet and seven and one-fourth inches eastwardly.

Ninth. The deed to Emil Teschemacher, dated March 8, 1879, was not recorded until July 9, 1884, when he and his wife joined with Matilda Mosberger in a conveyance of the property to Mena Sieferer, wife of Frank Sieferer. The deed from Matilda Mosberger, executrix, to Teschemacher, was then placed upon record on the ninth of July, 1884, and the deed from Teschemacher and Mosberger to Mena Sieferer was placed on record on the tenth of July, 1884, but defendant insists there is no evidence that the deed to Teschemacher was ever delivered to him at any time.

Tenth. The final judgment of condemnation was entered in the circuit court on the thirteenth day of November, 1884.

Mr. H. A. Loevy, attorney for plaintiff, testified that he had examined the records of the recorder's office in the city of St. Louis and had failed to find that the will of William A. Mosberger had been recorded in said office. At the time of the death of William S. Mosberger said property was vacant and unimproved and not under fence and so remained until after Teschemacher and Matilda Mosberger sold it to Mena Sieferer, who in the spring of 1885 caused the same to be fenced, which was removed in June, 1887, from the thirty feet, after the final judgment of condemnation by the city officers.

I. When this cause was considered by division number two of this court it was held that there was ample evidence of a documentary nature to show title in plaintiff to the land sued for, and that unless the condemnation proceedings by the city were valid the plaintiff's judgment must stand. The defendant in the circuit court undertook to establish a valid condemnation, which was controverted at every point by plaintiff. No declarations of law were asked or refused, and as we were wholly unadvised as to the theory upon which the court disposed of the defense interposed by the city, we held that inasmuch as no declarations of law were given or refused, there was nothing to review on the principal issue in the case. The learned city counselor having challenged that decision as being out of line with the recognized practice of this court, it was ordered that the case be transferred to the court in banc and it has accordingly been reargued. There can be no doubt that it is the uniform practice of this court to apply the law to the facts when there is an agreed state of facts, or where the evidence is wholly documentary, and its legal effect is simply matter of law. Waddell v. Williams, 50 Mo. 216; Henry v. Bell, 75 Mo. 194; State ex rel. v. Smith, 141 Mo. 1, 41 S.W. 906, and numerous other cases to the same effect. We have no disposition to overrule those decisions. But notwithstanding the confidence of the learned counsel to the contrary, the facts are not agreed upon in this case, nor are they conceded. On the contrary, the plaintiff challenged the...