University City v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 03 April 1941
• Docket Number: 36833
• Parties: City of University City, a Municipal Corporation, Plaintiff, v. The Chicago, Rock Island & Pacific Railway Company et al., Defendants, John W. Forsyth, Betty Forsyth Neill, Betty Way Forsyth, William Forsyth, Julia Flanagan Plettner, Louise Flanagan Ferber, Edward P. Tesson and Ernest S. Tesson, in their own behalves and in behalf of all the heirs of Robert Forsyth, Exceptors, Appellants
• Court: Missouri Supreme Court

149 S.W.2d 321

347 Mo. 814

City of University City, a Municipal Corporation, Plaintiff, v. The Chicago, Rock Island & Pacific Railway Company et al., Defendants, John W. Forsyth, Betty Forsyth Neill, Betty Way Forsyth, William Forsyth, Julia Flanagan Plettner, Louise Flanagan Ferber, Edward P. Tesson and Ernest S. Tesson, in their own behalves and in behalf of all the heirs of Robert Forsyth, Exceptors, Appellants

No. 36833

Supreme Court of Missouri

April 3, 1941

Reported at 347 Mo. 814 at 825.

Original Opinion of April 3, 1941, Reported at 347 Mo. 814.

Rehearing Denied.

Boudreau & Kramer, Staunton E. Boudreau, John B. Kramer, and Thos. J Noonan, all of St. Louis, for appellants.

Marvin E. Boisseau, of St. Louis, for respondent.

OPINION

PER CURIAM

In their motion for rehearing appellants challenge our opinion for two reasons. First, while acknowledging our ruling that Morrill v. Wabash, St. L. & Pac. Ry. Co., 96 Mo. 174, 9 S.W. 657, did not hold Robert Forsyth's deed in 1871 conveyed a base fee on a condition subsequent, yet they insist we overlooked their further contention that the then heirs and devisees of Robert Forsyth brought the Morrill suit on the theory that it did, and thereby made that theory "the law of the title to the strip of land in suit" and bound the present heirs and descendants of Robert Forsyth, as well as the mesne grantees of the abutting land down to date.

Appellants base this assertion on two grounds. One is that the plaintiff heirs and devisees of Forsyth brought the Morrill action in ejectment jointly, which they could not and would not have done unless they had believed the Forsyth deed conveyed a base fee on a condition subsequent; and were claiming the whole strip as reversioners after breach of that condition. If they had been of the contrary view, say appellants, that the deed only conveyed an easement, subject to which Robert Forsyth retained the title, there would have been no reason for his heirs to join as plaintiffs, for in the meantime Forsyth had died leaving a will in which he had divided the servient land into separate parcels and devised them severally to his children. On the easement theory the heirs and devisees could not have sued jointly, but the owners of each parcel would have been compelled to bring a separate action for the part of the strip carved out of it. In other words, there was a misjoinder of parties and causes of action if the deed conveyed only an easement. The other ground for appellants' first contention is the statement in the opinion in the Morrill case discloses that the agreed statement of facts therein recited Forsyth's deed "conveyed the strip of land in question, it being a part of a large tract, . . . for a right of way." Appellants say this shows it was the theory of the plaintiffs in the ejectment suit that the deed conveyed the land itself, not merely a right of way over the land.

We are unable to find where appellants made these points in their brief here. In their motion for rehearing they cite us to several pages of the brief, but these appear merely to refer to the theory of the decision, not to the theory of the parties to the case. And whatever the latter may have been, we are unable to see how it would be controlling after the court had spoken. Perhaps appellants mean the decision ought to be interpreted in the light of the trial theory of the parties, and that we have erred in our construction of the opinion.

With that thought in mind we have inspected the original record in the Morrill case on file here. Nowhere in it is there any claim that the Forsyth deed conveyed a base or qualified fee on a condition subsequent. The brief here for the plaintiffs-appellants in the old case refers to it as a grant of right of way on conditions subsequent. One of plaintiff's refused instructions set out in the brief declares the deed from...