Wells v. Pressy

• Decision Date: 02 June 1891
• Citation: 105 Mo. 164,16 S.W. 670
• Parties: WELLS v. PRESSY et al.
• Court: Missouri Supreme Court

16 S.W. 670

105 Mo. 164

WELLS v. PRESSY et al.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

SCHOOL LAWS — LEASE — EVIDENCE.

1. Act Mo. March 14, 1835, § 10, appointed "trustees of the school lands and lots, common field lots, and common of the village of St. Ferdinand," and gave them the power "to sell, lease, or otherwise dispose of all school lands and lots belonging to said village," and to use the interest of the proceeds in maintaining schools. The act of February 3, 1837, appointed another board of "trustees of the school lands and lots of the town of St. Ferdinand," with power to sell, lease, or otherwise dispose of the same, and out of the proceeds to erect and maintain schools. This act repealed "all laws or parts of laws coming within the purview of this act." Held, that the act of 1837 repealed that of 1835, so far as the latter related to the school lands and lots, common field lots, or common of the village of St. Ferdinand.

2. Where there is substantive evidence of the existence and loss of a village ordinance, the supreme court will defer to the decision of the trial court admitting secondary evidence of the contents of the ordinance.

3. A lease purported to be "made by the trustees of the town of St. F. of the first part." The rent was made payable to the party of the first part, and the town was given power to declare a forfeiture for non-payment of rents. The lease concluded: "In witness whereof the said parties have executed this indenture; that is to say, the party of the first part, by affixing its corporate seal and the signature of the chairman of the board of trustees." The seal of the town was attached to the lease, and it was signed, "J. L. H., Chairman." Held, that the lease was so executed as to bind the town.

4. The lease having been recorded in 1845, and possession having been since maintained under it, the record is, by the express terms of Rev. St. Mo. 1879, §§ 2305, 2310, prima facie evidence of the execution and genuineness of the lease, though the latter may have been defectively acknowledged.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Lee & Ellis and Montague Lyon, for appellant. George W. Rayse and William F. Broadhead, for respondents.

THOMAS, J.

This is an action of ejectment for the recovery of the possession of lot 55 of the commons of the city of Ferdinand, county of St. Louis. The parties stipulated as follows: "It is agreed, for the purpose of the trial of this case, that lot No. 55, in controversy, is a lot of the common of St. Ferdinand; that the inhabitants of the village of St. Ferdinand claimed and held said common under a concession from the Spanish government, made about 1796; that said claim and concession was subsequently confirmed by the authorities of the United States government, about the year 1815, and was subsequently surveyed under authority of the act of congress of June 13, 1812, by officers of the United States, as survey 1,202, for said inhabitants; and that such survey and confirmation have been duly recorded." It further appears from the record in the case that St. Ferdinand was incorporated by the county court of the county of St. Louis on the 13th day of May, 1829, under the name of "The Inhabitants of the Town of St. Ferdinand," under and by virtue of the General Statutes of the state. The legislature of this state passed an act, approved March 14, 1835, by the first section of which certain parties (naming them) were appointed "trustees of the school lands and lots of village A Robert." Sections 2-9 of this act prescribed the duties of such trustees, and provided that they should have power to sell, lease, or otherwise dispose of all school lands and lots belonging to said village, by giving sixty days' notice, and to use the interest of the proceeds realized from such lease or sale in maintaining a school or schools in or near said village. By the tenth section of the act, "Michael Castello, Samuel McGill, Joseph Aubuchon, Gabriel J. Aubuchon, Louis Ouvre, Hyacinthe Dehetre, and Antoine Dehetre were appointed trustees of the school lands and lots, common field lots, and common of the village of St. Ferdinand." Section 11 of the act is as follows: "The trustees, appointed in the next preceding section, shall have the same powers in relation to said village of St. Ferdinand as those appointed by this act for the village A Robert, and be governed in all respects, and subject to all the liabilities, in relation to the school land and school lands, outlots, common field lots, and common of the said village of St. Ferdinand as the aforesaid trustees of the village of A Robert, and shall, moreover, have power to settle and compromise privately with all persons settled on any school lot, outlot, common field lot, or part of the common of said village of St. Ferdinand, or with any person setting up claim to any school lot, outlot, common field lot, or part of the common of said village." By an act approved February 3, 1837, James Music, Samuel McGill, Elza H. Rose, Anthony Molly, and John Murphy were appointed trustees of the school lands and lots of the town of St. Ferdinand, with power to sell, lease, or otherwise to dispose of all the school lands and lots belonging to said village, and out of the proceeds to erect school-houses, and to loan the remainder and apply the interest to the maintenance of schools in or near said town. Section 10 is as follows: "All laws or parts of laws coming within the purview of this act shall be, and the same are hereby, repealed." On the 19th day of June, 1843, the county court of St. Louis county again made an order incorporating said village under the name of "The Inhabitants of the Town of St. Ferdinand," upon a petition of the inhabitants thereof. November 2, 1844, the following lease was executed, which was recorded February 8, 1845, viz.:

"This indenture, made by and between the trustees of the town of St. Ferdinand, in the county of St. Louis, of the first part, and Miss Mary Lyons, an inhabitant in said town, of the second part, witnesseth: That the party of the first part, for and in consideration of the sum of four dollars and seventeen cents now paid by the party of the second part, and of the rents and covenants hereinafter expressed, to be paid and performed by the party of the second part, and her legal representatives, has granted, leased, and let to farm, and does hereby grant, lease, and let to farm, unto the said party of the second part, and her heirs, executors, administrators, and assigns, that certain lot of land, situated in the common of the said town of St. Ferdinand, containing thirty and 9-10 acres, more or less, and being lot number fifty-five, as marked and designated on the recognized plat of survey of the said common; to have and to hold the said lot of land unto the said party of the second part, to her heirs, executors, administrators, and assigns, for and during the term of 1,000 years, fully to be completed and ended; which lot of land is estimated and agreed to be worth the sum of one hundred and thirty-nine dollars 5-100. And the said party of the second part, for herself, her heirs, executors, and administrators, doth covenant that she will pay to the party of the first part, semi-annually, at the end of every half year, counting from the date hereof, the sum of four dollars and seventeen cents, being six per cent. upon the estimated value of the said lot, being the half yearly rent for the said lot, which is hereby reserved as a rent, chargeable upon said lot, and upon the said party of the second part, and upon all persons who may claim or possess the same under her. And it is distinctly understood and agreed, and it is a condition of this lease, that, if the rent reserved shall, at any time, be and remain in arrear and unpaid for one entire half-year, the said party of the first part may, by a resolution of the board, or other authentic act in writing, declare the said lease forfeited and at an end; and from thenceforth this indenture shall be utterly null and void, and the party of the first part may take immediate possession of the premises. In witness whereof the said parties have executed this indenture; that is to say, the party of the first part by affixing its corporate seal and the signature of the chairman of the board of trustees, and the party of the second part by affixing her own hand and seal, this second day of November, A. D. 1844.

"By order of the board.

                   [L. S.]  "JAS. L. HOLLIDAY, Chairman
                                       her
                               "MARY    X  LYONS.  [Seal.]
                                     mark
                

"State of Missouri, county of St. Louis — ss.: Be it remembered that on this 19th day of November, in the year 1844, personally came before me the undersigned, a justice of the peace, within and for the county of St. Louis aforesaid, James L. Holliday and Mary Lyons, who are personally known to me to be the persons whose names are subscribed to the foregoing instrument of writing, as having executed the same, and acknowledged the same to be their act and deed for the purposes therein contained. Taken and certified the day and year aforesaid.

                          "JAMES CASTELLO, J. P."
                

Mary Lyons conveyed the lot in controversy to William Gilker, by quitclaim deed dated May 15, 1850. The defendants in this case are the tenants of Gilker. This is their title to the property. By an act of the general assembly approved February 11, 1857, the town of St. Ferdinand was declared to be a body politic under the name of "The City of Ferdinand." This act authorized the city council of St. Ferdinand to sell and convey all lands of the city, and especially "all lands embraced within United States survey number twelve hundred and two." The city of St. Ferdinand on the 5th day of August, 1880, conveyed by quitclaim deed, to Erastus Wells, the plaintiff herein, a large number of lots in United States survey No. 1,202, and in the city...