Woodson v. Skinner

• Decision Date: 31 October 1855
• Citation: 22 Mo. 13
• Parties: WOODSON, Respondent, v. SKINNER AND BRECK, Appellants.
• Court: Missouri Supreme Court

22 Mo. 13

WOODSON, Respondent,

v.SKINNER AND BRECK, Appellants.

Supreme Court of Missouri.

October Term. 1855.

1. A power to “ annul a sale” of a lot in the St. Louis common, made under the authority of “an act to authorize the sale of the St. Louis common,” approved March 18, 1835, is substantially pursued by declaring the lot “ forfeited to the city of St. Louis.”

2. The seventh section of the above act provided that the “board” of aldermen of the city of St. Louis might, by resolution, &c., “annul” a sale made under the said act, upon the non-payment of interest due; in a deed of the “mayor, aldermen and citizens of the city of St. Louis,” dated March 10, 1836, made under said act, a power was reserved to the “mayor and aldermen” to “annul the sale” upon the non-payment of interest: held, that it was the intent of the act that the body in which the legislative power of the city should at the time reside, should annul the sale; that, consequently, a resolution of the city council, consisting of the board of aldermen and board of delegates, (to whom by the act of February 8th, 1839, the legislative power of the city had passed,) approved January 3, 1841, declaring a lot “forfeited to the city of St. Louis, was a good annulment of the sale of said lot.”

3. The city of St. Louis has a fee simple title to its common, and may, under its charter, pass such a title to a purchaser.

4. There is a marked difference between a forfeiture imposed by a statute and one arising under the contract of parties. In the one case it can not be relieved against; in the other, it may.

Appeal from St. Louis Land Court.

This was an action, in the nature of an action of ejectment, to recover possession of the south-east quarter of block No. 79, in the St. Louis common. It is alleged in the petition that on the 23d day of June, 1848, the “city of St. Louis,” being the owner in fee simple of the above tract of land, conveyed the same to John Laughton and D. H. Armstrong, who, on the 24th day of October, 1849, conveyed to the plaintiff, Woodson. The defendants, in their answer, set up a prior title from the city of St. Louis, under a previous corporate name, and allege that “the mayor and aldermen of the city of St. Louis, claiming the power to dispose of said premises under an act of the general assembly of the state of Missouri, entitled “An act to authorize the sale of the St. Louis common,” approved March 18, 1835, by indenture of lease dated March 10, 1836, leased said premises to Nathaniel B. Atwood, for a term of fifty years from date of said lease, which term has not expired. The defendants claim under the said Atwood.

Upon the trial, the plaintiff showed the original title of the inhabitants of St. Louis to the common, which it is unnecessary to set forth here. Plaintiff then introduced in evidence a deed dated June 23d, 1848, from the city of St. Louis, to John Laughton and David H. Armstrong, purporting to convey the premises in controversy in the present suit; also a deed of conveyance of the same premises from the said Laughton and Armstrong to plaintiff, Woodson, dated October 24, 1849. There was evidence tending to show the value of the premises claimed to be $16,000, also tending to show the yearly value of the same. The plaintiff here rested, and the defendant then introduced in evidence a deed, dated March 10, 1836, of the mayor, aldermen and citizens of St. Louis, (the corporate name at the date of the deed) to Nathaniel B. Atwood; which deed is as follows: “This indenture, made at the city of St. Louis, Missouri, the 10th day of March, 1836, by and between the mayor, aldermen and citizens of the city of St. Louis, of the county of St. Louis, and state of Missouri, of the one part, and Nathaniel B. Atwood, &c., (of same place) of the other part, to comply with the ninth section of ‘An act to authorize the sale of the St. Louis common,’ approved March 18, 1835, witnesseth, that the mayor, aldermen and citizens of the city of St. Louis, for and in consideration of the rents reserved, &c., have demised, granted and to farm let, and by these presents do demise, grant and to farm let unto the said Atwood, his executors, administrators and assigns, all that lot, messuage or tract of land, situate within the limits of the St. Louis common, in the county aforesaid, containing 9 and 70-100ths acres, and described as follows: The S. E. 1/4, block 79, of the survey of the St. Louis common, made by Charles DeWard, by order and direction of the board of aldermen of the city of St. Louis, together with all the rights, members and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the rent, issues and profits thereof: To have and to hold the said lot, messuage and tract of land, and all and singular the premises hereby demised, with the appurtenances, unto the said Atwood, his executors, administrators and assigns, from the date hereof, for and during the term, and upon the condition following, being those prescribed by an act of the general assembly of the state of Missouri, passed March 18, 1835, entitled ‘An act to authorize the sale of the St. Louis common.’ That is to say:

“1st. Yielding and paying for the same as a yearly rent, unto the mayor, aldermen and citizens of the city of St. Louis, and their successors, the interest of five per cent. a year on the amount bid for said lot or parcel of ground, being the sum of $36 86, at the expiration of one year from the date of these presents; and to secure the payment of which a note has been executed by the said Atwood, and the like sum at the expiration of every year thereafter.

2d. That at the end of fifty years from the day of sale, being the 8th day of March, 1886, and every fifty years thereafter, and after the assessment made by the public assessor, agreeably to the act of the general assembly above mentioned, the said Atwood shall pay five per centum a year upon such assessed value as a yearly rent.

3d. That should the interest aforesaid remain unpaid for six months after due, the mayor and aldermen of the city aforesaid may annul the sale, and proceed to sell again, according to the act of the assembly aforesaid.

4th. That at the expiration of ten years from the day of sale, or at any time after such term, if the annual per cent. aforesaid be duly paid, the said Atwood may pay the sum of $737 20, being the amount bid for the lot aforesaid, and receive a deed in fee simple, with special warranty only against the inhahitants of the city of St. Louis, and all persons claiming under them; and the said Atwood,” &c., (here follows a covenant to pay the rent, &c.)

In witness whereof, the parties aforesaid have executed this deed in duplicate, the mayor of the city of St. Louis and the city register signing their names, and causing the common seal of the city of St. Louis to be affixed to both parts, and the said Atwood signing his name and affixing his seal to both parts of this indenture, on the 10th day of March, 1836.

JOHN F. DARBY, Mayor,

NATH'L. B. ATWOOD, (seal.)

J. A. WHERRY, Register, (seal of city.)”

The defendants also gave in evidence a deed from N. B. Atwood to J. W. Skinner, the defendant, assigning to said Skinner a portion of his (Atwood's) interest in the premises. This deed is dated September 6th, 1850.

The plaintiff then in rebuttal introduced Socrates Newman, who testified that he was the register of the city of St. Louis, and that ordinances 766 and 2826, as they appear in the volume of published ordinances, were duly enrolled on the records of the board of aldermen and board of delegates of the city council. These ordinances were then offered in evidence, and admitted in evidence against objection of defendants. Ordinance 766, approved January 3d, 1841, is as follows:

“A joint resolution providing for the forfeiture and sale of certain lots in the city common.

Whereas, the parties hereinafter named have failed to comply with the conditions of sale set forth in the conveyances to them made respectively of lots in the city common, viz., being in arrears for more than six months' interest on their respective purchase; and, whereas, by the conveyance made to them, the right of forfeiture is reserved to the city in certain cases therein provided:

Be it resolved by the city council of the city of St. Louis, that the following described lots in the city common are hereby declared forfeited to the city of St. Louis, viz: (among others) a lot sold to N. B. Atwood, containing nine and 70/100 acres, being the south-east quarter of block seventy-nine,” &c.

There was a further resolution ordering the forfeited lots to be sold again. Ordinance 2826, approved June 19, 1852, is as follows:

“Joint resolution concerning the city common. Whereas, there have been verbal criticisms upon the phraseology of the several resolutions of the board of aldermen annulling the sales of certain lots in the St. Louis common; that any apprehension of subsequent purchasers may be quieted, be it resolved by the board of aldermen and board of delegates of the city of St. Louis, that, inasmuch as the interest or rent reserved to be paid to the mayor, aldermen, and citizens of the city of St. Louis, in the respective deeds made by the mayor, aldermen, and citizens of the city of St. Louis, and the interest or rent reserved to be paid to the city of St. Louis in the deeds made by the city of St. Louis to the purchaser, and for the lots in the St. Louis common hereinafter named, has remained unpaid either to the mayor, aldermen, and citizens of the city of St. Louis, or the said city of St. Louis, for more than six months after the same became due and payable,which said lot and the names of the purchasers thereof are as follows (among others): a lot sold to N. B. Atwood, containing nine acres and seventy-one-hundredths, being the south-east quarter of block 79.

Now, therefore, the said several sales of lots in the St. Louis common above named, and to the purchasers above...