Wells v. Pressy

• Decision Date: 02 June 1891
• Parties: Wells, Appellant, v. Pressy et al
• Court: Missouri Supreme Court

16 S.W. 670

105 Mo. 164

Wells, Appellant, v. Pressy et al

Supreme Court of Missouri, Second Division

June 2, 1891

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Affirmed.

Lee & Ellis and Montague Lyons for appellant.

(1) The board of trustees of the town of St. Ferdinand had no power in the year 1844, to make, or authorize the making of, the lease from them to Mary Lyons, dated November 2, 1844, and read in evidence by the respondents. Act of March 14, 1835 Laws of Mo. of 1835, p. 488; R. S. 1835, p. 600 (an act for the incorporation of towns). (2) Said lease from the trustees of the town of St. Ferdinand to Mary Lyons is defective and invalid. There was no proof, either on the face of the instrument or by evidence aliunde, that it was executed in pursuance of, or in compliance with, any proper authority for its execution; no authority was shown, either on the face of the instrument or by evidence aliunde, for the execution thereof by the chairman of the board of trustees, and said lease is, on its face, the individual act of one Jas. L. Holliday, whose name purports to be signed thereto as chairman. It should, therefore, have been rejected by the trial court. Osborne v. Tunis, 25 N. J. L. 633; President & Trustees v. Railroad, 44 Cal. 106; Dezeng v. Beekman, 2 Hill (N. Y.) 489; R. S. Mo. 1835, sec. 2, p. 601; St. Louis v. Gorman, 29 Mo. 593; Pettis Co. v. Gibson, 73 Mo. 502; Bumgarner v. Cogswell, 49 Mo. 259. (3) The proceedings of the board of trustees of said town were required to be kept in a journal, and should be public. R. S. 1835, sec. 6, p. 601. Parol evidence was, therefore, inadmissible to prove such proceedings, or the existence of the ordinance upon which the respondents rely, or the contents of such ordinance, in the absence of sufficient proof of the previous existence of an executed original ordinance, and its subsequent loss or destruction. Perry's Adm'r v. Roberts, 17 Mo. 36; Gould v. Trowbridge, 32 Mo. 291; Attwell v. Lynch, 39 Mo. 519; Blondeau v. Sheridan, 81 Mo. 545; City of Aurora v. Fox, 78 Ind. 1. (4) Evidence, that the treasurer of the town of St. Ferdinand, or subsequently the treasurer of the city of St. Ferdinand, may have accepted from Mary Lyons, or her assignee, William Gilker, the rent provided for in the lease read in evidence, did not create an estoppel as against either the town or city of St. Ferdinand, or the latter's grantee, the appellant in this case. Heidelberg v. St. Francois Co., 100 Mo. 69; Sturgeon v. Hampton, 88 Mo. 203; Pettis Co. v. Gibson, 73 Mo. 502; St. Louis v. Gorman, 29 Mo. 593.

George W. Royse and W. F. Broadhead for respondents.

(1) The absolute fee-simple title to the commons, United States survey, number 1202, of which lot 55 is a part, was originally vested in the inhabitants of the village of St. Ferdinand, to be regulated and disposed of according to the laws of Missouri. Acts of Congress of June 13, 1812, and of January 27, 1831; 1 Land Laws of U.S. pp. 410 and 432; Le Bois v. Brannell, 4 How. (U. S.) p. 499; Adm'r of Janis v. Gurns, 4 Mo. 458; Bird v. Montgomery, 6 Mo. 510; Langlois v. Crawford, 59 Mo. 469; Vasquez v. Ewing, 42 Mo. 247; Public Schools v. Schoenthaler, 40 Mo. 372; Soulard v. Clark, 19 Mo. 570; Glasgow v. Baker, 85 Mo. 559. (2) The county court of St. Louis county had authority to incorporate, and, by its orders of 1829 and 1843 read in evidence, the inhabitants of said village in the district embracing the whole of the commons, or United States survey 1202, became legally incorporated as the town of St. Ferdinand; and the validity of such incorporation cannot be collaterally attacked. R. S. 1825, p. 764; R. S. 1835, pp. 600, 601, sec. 1, etc.; Keyser v. Trustees, 16 Mo. 88; State ex rel. v. Weatherby, 45 Mo. 17; Snoddy v. Pettis Co., 45 Mo. 361; State v. Evans, 83 Mo. 319; Price v. Real-Estate Ass'n, 101 Mo. 107. (3) The said town, the successor of the "Inhabitants of the village of St. Ferdinand," had full power to lease said commons, or any part thereof. R. S. 1825, pp. 211, 764; R. S. 1835, sec. 1, pp. 600, 601; R. S. 1835, p. 385, sec. 34, clause 9; Carondelet v. Lannan, 26 Mo. 461-465; McDonald v. Schneider, 27 Mo. 405; Dillon on Mun. Corp. [1 Ed.] sec. 448, p. 434. (4) This power to lease was properly exercised in the lease to Mary Lyons, the grantor of defendants, and those under whom they claim; it was signed by the proper officer, under the corporate seal of the town, duly acknowledged and recorded, and, like all sealed conveyances, bore prima facie proof upon its face, that it was duly executed and delivered, and in legal presumption, in accordance with the legal power conferred by said acts, and under the authority of the board. Schwartz v. Page, 13 Mo. 603; Addis v. Graham, 88 Mo. 197; Chouquette v. Barada, 33 Mo. 349; Reilly v. Chouquette, 18 Mo. 220; Tigh v. Chouquette, 21 Mo. 233; Musser v. Johnson, 42 Mo. 74; Sandford v. Tramlette, 42 Mo. 384; Jamison v. Fopiana, 43 Mo. 565; Dale v. Wright, 57 Mo. 110; Geary v. City of Kansas, 61 Mo. 378; Norfleet v. Russell, 64 Mo. 176; Griffith v. Schwenderman, 27 Mo. 412; Public Schools v. Risley, 28 Mo. 415; Dillon on Mun. Corp. [1 Ed.] sec. 130, p. 172. (5) If it should be considered that the defendants are called upon to prove the authority of Holliday, the chairman of the town board, to execute the lease, the record affords the proof; an ordinance or resolution of said board was passed, providing for the leasing of the commons, the terms and conditions of such leases, and the manner of leasing; this ordinance having been lost, the defendants were entitled to introduce proof of its contents; and the proof shows the authority of the chief officer of the board. Perry v. Walker, 57 Mo. 169-171; Faulk v. Colburn, 48 Mo. 225; Newcomb v. Drummond, 4 Leigh. 57; Blondeau v. Sheridan, 81 Mo. 556; Henderson v. Henderson, 55 Mo. 534; Shaw v. Pershing, 57 Mo. 416; Christy v. Kavanaugh, 45 Mo. 375; Meyers v. Russell, 52 Mo. 26; Barton v. Murrain, 27 Mo. 235. (6) Mary Lyons having entered under the lease, and the town of St. Ferdinand having accepted rent thereunder from her and those holding under her, from 1844 to the time when said town became incorporated as a city in 1857; and said city having accepted rent under said lease from 1857, until the sale of the fee to plaintiff in 1880 -- in all a period of thirty-six years -- in the meantime the inhabitants having acquiesced -- said lease was thereby fully ratified by the town, the city and the inhabitants of St. Ferdinand; and all are estopped from disputing its validity. Carondelet v. McPherson, 20 Mo. 203, 204; Tigh v. Chouquette, 21 Mo. 233; McDonald v. Schneider, 27 Mo. 405; Taylor on Landlord & Tenant [2 Ed.] sec. 91; Gas Co. v. San Francisco, 9 Cal. 453; Gaslight Co. v. City, 46 Mo. 121; Searcy v. Garnell, 47 Ark. 269; Tube Works Co. v. City, 37 N.W. 761.

OPINION

Thomas, J.

This is an action of ejectment for the recovery of the possession of lot 55, of the commons of the city of St. Ferdinand, county of St. Louis. The parties stipulated as follows: "It is agreed for the purpose of the trial of this case, that lot number 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 were 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 1202, 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 thirteenth 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, 3, 4, 5, 6, 7, 8 and 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 liabilities in relation to the schools and school lands, out lots, 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, out lot, 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, out lot, 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...