Tamm v. Kellogg

• Decision Date: 31 October 1871
• Citation: 49 Mo. 118
• Parties: JACOB TAMM, Respondent, v. SANFORD B. KELLOGG, Appellant.
• Court: Missouri Supreme Court

49 Mo. 118

JACOB TAMM, Respondent,

v.SANFORD B. KELLOGG, Appellant.

Supreme Court of Missouri.

October Term, 1871.

Appeal from St. Louis Circuit Court.

Knox, for appellant.

I. The record does not show any privity between the plaintiff and defendant. (1 Wheat. Sel. Nisi Prius, 104.) The plaintiff, Tamm, was no party to the proceedings of the city of St. Louis v. Kellogg. The verdict and assessment of the jury was in favor of defendant. The verdict was confirmed and the money paid to defendant by the city. Plaintiff had no interest in it. By the payment of the money the city was entitled to take possession and did take possession of the land, and defendant's title was vested in the city.

II. The plaintiff did not show any legal title to the land. The rights of the parties to this suit depend upon whether Chouteau Mill creek, in 1845, was a fixed or a shifting boundary, which is a question of law upon the facts proved. The channel of said creek was actually located and fixed in 1845, by survey, and could not afterward be a shifting boundary line. (Ang. Wat. Cours., § 57; 3 Kent's Com. 428; Mincke v. Skinner, 44 Mo 92-7; Primm v. Walker, 38 Mo. 94, 99.)

III. The plaintiff testified that he claimed and now claims only so much land as is included in his deeds from Paul in 1847. Paul's possession did not extend beyond the center of the creek as it was in 1845 and 1847, and if, then, the creek has moved to the eastward at any time since 1847, from any cause, the plaintiff's possession is by mistake, and, under the instruction of the court, cannot avail him in this suit.

E. C. Kehr, for respondent.

I. Defendant cannot say that the city did not acquire full title to the land; he was a party to the land commissioner's proceeding, claimed the land in question, and received its equivalent in money.

II. Land may be dedicated to public use without a deed. Plaintiff, in bringing this action, assents to and confirms the taking of his land and the proceedings before the land commissioner; this, with a judgment for the compensation assessed, will work a dedication of the land. (Soulard v. City, 36 Mo. 546; McKee v. City, 17 Mo. 184.)

BLISS, Judge, delivered the opinion of the court.

The city of St. Louis established and opened Mercer street, appropriated land claimed by both plaintiff and defendant; the damages were assessed at $900, and paid to defendant, and the plaintiff brings this suit for the money thus received. Both parties treat the proceedings of the city authorities as regular, and seek to affirm them, although they might have been avoided for non-compliance with the statute; and the question arises, whether there was such privity between these parties that this action will lie.

In order to sustain an action for money had and received, privity of contract is not required. As a rule, when one person has in his hands money belonging to another, the law implies privity, and an action will lie on behalf of the latter. (Floyd v. Wiley, 1 Mo. 643; Hall v. Marston, 17 Mass. 575.) And when money has been received from the wrongful sale of the personal property of another, the latter may waive the wrong and recover the amount received. (Floyd v. Wiley, supra;Jones v. Hoar, 5 Pick. 285 and note; Marsh v. Keating, 1 Bing., N. C. 199.) The fiction of a promise is now dispensed with, but the obligation is the same, and the title to the property thus wrongfully taken and sold is confirmed in the purchaser. The plaintiff seeks to apply this liability to the case of one who has received pay for land which he claimed to own, at the suit of another who had been an adverse claimant; and thus, in a money action to try the title to real estate, or rather to decide who at a certain time was the owner. Ordinarily, the title to the realty cannot be tried in this form of action. A person who is disseized cannot recover for use and occupation (Edmondson v. Kite, 43 Mo. 176; 11 Pick. 9; 2 Gill, 327), or for money received from rents (Codman v. Jenkins, 14 Mass. 96), or sales of timber (Bigelow v. Jones, 10 Pick. 161), or from the sale of the land itself, by showing that the land belongs to him. (Bingham v. Winchester, 6 Metc. 460.) The reason given for the distinction between real and personal property is that by ratifying the conversion of the latter, the title, which may pass by mere delivery, is thus confirmed in the assignee of the wrong-doer; but the transfer of real estate is regulated by different rules, and great confusion would arise if it were predicated upon a money action.

In the cases where parties are forbidden to try title by an indebitatus action, the present title is in dispute, the plaintiff is disseized, and seeks to recover by showing that the title is in him, and that he is entitled to possession, and hence that the one in possession holds under him as tenant; or, if the property has been sold, that its proceeds were received for his use. The implied ratification of an adverse claim cannot operate as a conveyance; hence there is no privity. If, however, the title passes by operation of law, and no deed is required, the statute of frauds is satisfied, and no principle is violated by holding that the sale may be ratified, and that the money received should be held for the true owner.

In an action of trespass against a municipal corporation for an illegal appropriation of land, it is held that a judgment for damages operates as a transfer of title, or dedication to the uses for which it was appropriated. (Soulard v. St. Louis, 36 Mo. 546.) The distinction between ...