Summary
APPEAL PROM ST. LOUIS COURT OP COMMON PLEAS.
This was an action of ejectment, brought by Page against Swartz, to recover a lot lying within the St. Louis commons, and also within the confirmation of James Mackay or his legal representatives by the act of 4th July, 1886. At the trial, the then plaintiff, gave in evidence a duly certified plat anel certificate of survey made under the authority of the United States, being survey No. 8125, and- which it was agreed truly represents the out boundaries of the commons confirmed to the inhabitants of the town of St. Louis by the act of Congress, 13th June, 1812, and relinquished to the said inhabitants in full, properly according to their several rights therein, to be regulated according to the laws of the State of Missouri, by an act of Congress approved 27th January, 3831. The plaintiff' then offered in evidence an instrument purporting to be the deed of the mayor, aldermen and'citizens of the city of St. Louis to George Morton bearing date the 30th May, 1836; executed by the mayor and register of the city of St. Louis, signing their names and causing the common seal of said city to be affixed on the 10th April, 1886 ; the instrument is signed John P. Darby,
George Morton, [seal]
The seal of the corporation is affixed opposite the-and the words “By tlie Mayor” signed, J. A. Wherry, register of the city of St. Louis. This instrument commences : This deed (being a compromise sale) made this 30th day of May, in the year of our Lord, 1886, between the mayor, aldermen and citizens of the city of St. Louis of the county of St. Louis and State of Missouri, party of the first part, and George Morton of the city, county and State aforesaid, of the second part, witnesseth, that the said party of the first part in consideration of $900 in hand paid by George Morton, have bargained, sold and quit-claimed, and hy these presents, do bargain, sell and quit-claim, unto' said George Morton his heirs and assigns forever, all that tract of land, &c., setting out a minute description, which may be stated in general terms, to he bounded north by Chouteau’s mill tract, west by the west line of lot No. 6, in the St. Louis commons as surveyed by Chas. De Ward, south hy the center of Park avenue, and east by the east line of St. Louis commons, embracing lots number two, three, four, five and six,-containing forty-five acres, exclusive of the avenues bounding and running through the land surveyed. This description is followed hy the habendum, and a special covenant limiting the warranty against tlie grantors and persons claiming under them. The deed appears to have been acknowledged before a justice of the peace of St. Louis county, by John. E. Darby and George Morton, who the justice certifies “are personally known to him to he the persons whose names are subscribed to the instrument,” on the 10th of May, 1836. It was recorded the same day.
The defendant objected to reading the deed in evidence on the following . grounds. First. That it did not appear that any election was held as required hy law, nor was there any evidence that a majority of the owners had consented to the sale of the commons. Second. That it does not appear that George Morton, at or before the date of the deed had any claim within the commons conflicting with the claim of the city of St. Louis. Third. That there is no evidence of any settlement or compromise made by the mayor and hoard of aldermen of the said city. Fourth. That the deed was not made by tlie mayor and board of aldermen, or that tlie same liad been authorized before or ratified after it was made, by the board of aldermen. The court overruled the objection and allowed the deed to be read to the jury, to which decision the defendant excepted. The deed was then read, and the defendant admitted that the land therein described.is wholly within the survey No. 8125, and is part of the commons confirmed and relinquished to the inhabitants of St. Louis. The plaintiff then proved that all the right, title, estate and interest of George Morton in the land described, was vested in the plaintiff by a deed made by the sheriff of St. Louis county, bearing date the 15th March, 1845. That the defendant was at the commencement of this suit in possession of a small portion of the land described in the deed just mentioned, and gave evidence tending to prove damages sustained, and the monthly value of the part in possession of the defendant.
The plaintiff admitted that no part of survey No. 3125, or of the commons of St. Louis was within the limits of the city of St. Louis, as it stood incorporated at any time prior to the 31st March, 1841.
The defendant then read in evidence so much of the report of the recorder and commissioners laid before and confirmed by an act of 4th July, 1836, as relates to the claim No 54 of James Maekay, claiming 200 and more arpents,' under a concession of 9th October, 1799, for two hundred and some arpents bounded on the north by land of Auguste Chouteau, south by that of Soulard east by the public road going from St. Louis to Carondelet, and west by the domain and a survey certified by Antoine Soulard, 17th December, 1802, confirmed jo James Maekay, or his legal representatives according to the concession, and it was agreed'that the land in controversy lies within the concession, survey and confirmation. The defendant tiien read in evidence : 1. A deed executed by Isabella Maekay, executrix of James Maekay, deceased (in pursuance of a power contained in the will of said Maekay), whereby she conveyed to Arund Rutgers all the estate and interest of the testator at the time of his death in and to a parcel of land containing 33 arpents French measure described by metes and bounds, “which include 'the land in controversy” being part of the land granted to and surveyed by James Maekay as before stated, which deed bears date the 5th May, 1825. 2. A deed of the sheriff of St. Louis county, dated the 18th of January, 1825, under and by virtue of judgments and executions against the executrix of James Mac.kay, deceased, conveying to Abner Blaisdell a tract of land containing “fifteen acres and nineteen hundredths of an acre,” bounded, eastwardly by lands of Arund Rutgers,, north by land of Chouteau, west by lot No. 3, on a plat referred to, and south by Antoine Soulard, deceased, which land is admitted to be within the commons of St. Louis, and also within the concession and survey in favor of James Maekay, “ and does not include any part of the land in controversy.” 3. A deed dated 9th May, 1828, from said Blaisdell and wife conveying to James W. White and Michael Gorman, the land described in the deed last above mentioned. 4. A deed from said White and Gorman,'dated 9th November, 1830, conveying the same land to George Morton. The defendant then read to the jury a transcript of the records of the proceedings of the board of aldermen-of the city of St. Louis, by which it appears that on the 2nd April, 1836, the committee on the commons made a report which was adopted. The report is-set out in extenso. The clause which relates to the-claimants under Maekay, is in these words : “ They have also had the petition of P. M. Dillon under consideration, and would respectfully recommend to the board a compromise predicated on the following basis : First, the mayor and board of aldermen of the city of St. Louis will convey all their right and title to the land within the survey of the commons, known as the Maekay claim to the representatives of said Maekay, for and in consideration of twenty dollars per acre, the purchasers to be placed on the said grounds with regard to payments as the other purchasers of land within the commons with the additional privilege of paying the principal of said purchase whenever they may think proper to do so.” The report closes in these words : “ To bring about a definite action by your honorable body on the several recommendations in the above report, the committee recommends the adoption of the following resolutions” : The first resolution relates to a conveyance of the United States, of seven acres of land for $300. The 4th and last proposes that the members of the committee ■shall hare $5 per day, each for their services. The others being the second and third of the series, are in these words : Resolved, That P. M. Dillon, George Morton and Frederick Dent, being the legal representatives of “ James Mackay,” shall receive deeds for the “ lands claimed by them,” and which is within the survey of the commons, by their paying twenty dollars per acre therefor, and that they have the privilege of paying the principal at the time of executing the deeds, “ or at any time hereafter, which may suit their convenience within ten years.” Resolved, That the deeds to be executed by virtue of the power given the board to make compromises, express that it is a compromise sale, and that persons so compromising be entitled to pay the amount agreed upon down, or avail' themselves of the advantages advertised in the notice of the sale of the commons.
The defendant proved by the register of the city and keeper of the records of the board of aldermen, that the transcript includes all the proceedings of the board of aldermen in relation to the claim of George Morton and other persons, claiming under James Mackay within the commons.
The defendant then offered to prove by the testimony of the members of the ■board of aldermen, who were members of the committee on the commons, and were produced as witnesses, that George Morton did not claim before the committee or the board, before or at the time of the passage of the resolution contained in the transcript, any part of the land in controversy ; that he claimed ■only the parcel described in the deed from White and Gorman to him, read in ■evidence by the defendant; that no other claim of said Morton within the commons was known to the board of aldermen, and that the resolution of the board referred to the claim theretofore made and no other ; that said Morton was a member of the board of aldermen and of the committee on commons, and was present acting as a member of the board when the report of the committee was adopted; and one of said witnesses being produced and sworn, the court could not permit him to be examined or hear any testimony touching the facts so offered to be proved — to which decision exception was taken.
The defendant read in evidence the act of the General Assembly incorporating the inhabitants of St. Louis, approved 9th December, 1822, which is to be used in the Supreme Court as if set forth at large. No other evidence material to the issue was given.
The court, at the request of the plaintiff, instructed the jury as follows : If the jury find from the evidence that the land in controversy is embraced within the commons of the town of Sfc. Louis, as confirmed by the act of 13th June, 1812, and as said commons was surveyed under the authority of the United States, according to the survey thereof given in evidence, and that it is included within the land described in the deed from the mayor, aldermen and citizens of the city of St. Louis to George Morton ; that such deed was executed as it purports to have been, and the same land is included within the land conveyed in the deed of the sheriff to the plaintiff, then the title of the plaintiff is superior in law to the title under the confirmation to James Mackay by the act of Congress of the 4th July, 1836, and if they find that the defendant was in the possession of the land in controversy at the commencement of this suit, they will find for the plaintiff.
To which the defendant excepted, and prayed the court to instruct the jury as follows : 1. The deed dated the 10th May, 1836, signed by John F. Darby, then mayor of the city of St. Louis, and George Morton, given in evidence by the plaintiff, does not operate to pass the title of the inhabitants of St. Louis to the land therein described to George Morton. 2. Unless the jury find from the evidence that George Morton, before the 10th May, 1836, had a claim to the land described in the deed of that date, and that the mayor and board of aider-men did settle and compromise said claim, and authorize the execution of said deed, then George Morton acquired no title to the land in controversy by virtue of said deed. 3. The deed of the 10th May, 1836, furnishes no evidence that George Morton had a claim to the land therein mentioned conflicting with the inhabitants of St. Louis, or that his claim had been compromised by the mayor and board of aldermen. 4. Unless the jury find from the evidence that prior to the 10th May, 1836, a majority of the owners of the commons qualified to vote, consented to the sale thereof in the manner provided by an act of the General Assembly of the State of Missouri, entitled an act to authorize the sale of the St. Louis commons, approved the 18th of March, 1835, the deed executed by John E. Darby and George Morton given in evidence in this case is void. 5. If the jury find from the evidence that prior to 10th May, 1836, George-Morton had no claim to the land in controversy, and that the board of aldermen of the city of St. Louis did not authorize or assent to the conveyance of said land by the mayor, then the deed executed by the mayor and said Morton did not pass the title of the inhabitants of St. Louis in said land. 6. If the jury is satisfied by the evidence, that the proceedings of the board of aldermen read in evidence by the defendant, exhibit all the acts of the board of aldermen in relation to the claim of George Morton, under James Mackay, in the common of St. Louis, and that no claim then made by said Morton included any part of the land in controversy, then the mayor was not authorized to convey said land. 7. If the jury find from the evidence that before and at the time of the passage of the resolution in relation to the claims under James Mackay, George Morton was a claimant to a parcel of the tract originally granted to Mackay, and that such parcel was designated by metes and bounds, not including the land in controversy, or any part thereof, then the resolutions are to be construed as a compromise only of the claim actually made, and to authorize a conveyance of the land so claimed and no other; and the deed executed by the mayor does not operate to convey any title to the land in controversy. 8. If the jury find from the evidence that the tract of land described in the deed of the 10th May, 1836, is part of the land originally granted to James Mackay, and'within the St. Louis commons ; that George Morton had a claim to a parcel of said land, designated by metes and bounds, which excluded the land in controversy; that he had not before the 2nd April, 1836, any other claim as representative of James Mackay within the commons, then the resolutions of the board o'f aldermen of that date authorize a conveyance only of the parcel so claimed, and. if the jury also find that there was no other act, resolution or proceeding of the board of aldermen, relating to any claim of George Morton within the commons, then the aforesaid deed of 10th May, 1836, does not operate to convey the land in controversy, or any part thereof. 9. The resolutions and proceedings of the board of aldermen, given in evidence, do not authorize the conveyance to George Morton of any part of the commons to which he had no claim, or which he did not claim as representative of James Macka,y. If therefore there was no other acts or proceedings of the board of aldermen authorizing a conveyance to said Morton of any part the ommons, the authority of the mayor was limited to the parcel actually claimed, and did not authorize him to convey to said Morton other lands not embraced within any claim made by the said Morton or known to the board of aldermen. 10. The mayor and board of aldermen had not on the 10th May, 1836, any power or authority to sell and convey any portion of the St. Louis commons at private sale, nor had they authority to convey any parcel of said commons, which was not claimed by any person adversely to the inhabitants of St. Louis, or purchased at public sale. 11. The mayor of the city of St. Louis had not, on the 10th May, 1836, or before, any power or authority to convey to any person any part of the co'mmons which had not been sold at public sale without the personal assent or subsequent ratification of the board of aldermen. 12. The mayor and board of aldermen had no power or authority by way of settlement or. compromise, or otherwise, to settle and convey lands within the commons to which there was no claim conflicting with the claim of the inhabitants of St. Louis. 13. If the jury find from the evidence that prior to 10th May, 1836, George Morton had not, and that Arund Rutgers or his representatives had, a claim to the land in controversy under James Mackay, and that the proceedings of the board of aldermen, given in evidence by the defendant, exhibits all the acts, resolutions and proceedings of the said board relating to the claims under James Mackay ; then the said deed of the 10th May, 1836, under which the plaintiff claims, does not operate to convey the land in controversy to him. 14. The mayor of the city of St. Louis had not authority to convey lands in the commons to persons who had not any claim thereto, to the exclusion of those who had claims conflicting with the claim, of the inhabitants of St. Louis, and therefore the deed of 10th May, 1836, does not operate to vest in George Morton a title to the land in controversy, if it appears to the satisfaction of the jury that he had no claim to said land, and that Arund Rutgers and his heirs were the legal representatives of Mackay in respect to said land. 'Which instructions, and each of them, the court refused to give, and ,the defendant excepted to the decision.
A verdict was rendered for the plaintiff, and in due time the defendant filed a motion for a new trial — assigning as reasons : 1. The admission of evidence which ought to have been excluded. 2. The exclusion of evidence that ought to have been admitted. 3. Misdirection in giving instructions. 4. Error in refusing instructions prayed by the defendant. 5. That the verdict is against law and evidence. The court overruled the motion, and the defendant excepted. .Judgment being rendered for the plaintiff the defendant appealed.
I. The act of Congress of the 13th Juno, 1812, operates as a grant of the commons to the inhabitants of St. Louis in full property, if they arc capable of taking by that description, and vests no interest in any municipal corporation. It has been repeatedly held by this court, and by the Supreme Court of the United' States, that the act of 1812 is a grant vesting the title by its own force, leaving the extent’ and boundaries to be judicially ascertained by evidence aliunde. Bird v. Montgomery, 6 Mo. R. 510 ; Mackay v. Dillon, 7 Mo. R. 7 ; 4 Howard’s S. C. 448 ; Chouteau v. Eckert, 7 Mo.-R. 16; 2 Howard’s S. 0.370; Les Boisv. Brammell, 4 Howard, 449. If therefore the grant to the inhabitants of St. Louis is void for uncertainty, the title of the appellee fails altogether since the title could not vest in the corporation by the terms of the grant.
II. If the title became vested by the act of 13th June 1812, it could not afterwards be in any way affected by the legislation of Congress. On that day the property became exclusively subject to the laws of the State of Missouri. Congress could not delegate to the Legislature of Missouri any authority to dispose of the property, and consequently no new power was conferred by the act of 27th January, 1831. The United States having been divested of all interest by the grant, could not exercise any control over the subject. City of New Orleans v. Cumas, 9 Peters, 224 ; Fletcher v. Peck, 6 Cranch, 87. It is an acknowledged principle of law, that the title and disposition of real property is exclusively the subject of the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one person to another. 9 Wheat. 565 (5 Cond. R. 882); 10 Wheat. 192 (6 Cond. R. 71).
III. Private property is not subject to the will and caprice of the Legislature. That government can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of the legislative body without any restraint. The fundamental maxims of free government require that the rights of private property should be held sacred — at least no court of justice would be justified in assuming that the power to violate or disregard them lurked under any general grant of legislative authority. Wilkinson v. Leland, 2 Peters, 657 ; Van Haus, Lessee, v. Dorrance, 2DaIl. 304 ; Society, &c. v. New Haven, 8 Wheaton, 464. The act of 1835 is not to be construed into a power, to the mayor and aldermen to dispose of the property of the inhabitants in the . commons at pleasure, if such construction may be avoided, and another adopted which is consistent with the Constitution and the vested rights of the owners of the property. The act is in derogation of the common law, and is to be construed strictly. Sharp v. Spier, 4 Hill, 76 ; Sharp v. Johns, 4 Hill, 92; Taylor v. Porter, 4 Hill, 140; Quackenb'ust v. Danks, 1 Denio, 128; 7 Mass. R. 523; Dash v. Dankleek, 7 Johns. R. 477 ; Sayer v. Wesner, 7 Wend. 661; Gar-rell v. Doe, 1 Scammon, 337 ; Commonwealth v. Jarro t, 7 Serg. &Rawle, 460 ; case of St. Mary’s Church, 7 Serg. & Rawlc, 517.
IV. A power of sale, like all other powers, can be exercised only in the mode, and subject to the conditions, if any, prescribed by the instrument creating the power. Wright v. Wakeford, 17 Vesey, 554. Thus if a sale be directed to be made with the consent of a tenant for life, or of any other person, the consent must be obtained before tbe exercise of the power. Mortlpck v. Bul-ler, 10 Yesey, 308. Where there is a condition precedent to the exercise of a power.no sale under the power can by possibility be sustained, unless the condition be performed. 2 Serg. & Rawle, 48 ; Deke v. Recks, Oro. Oa. 335 ; Doe v. Master, 4 Term. R. 39 ; Little y. Frost, 3 Mass. R. 106.
Y. The deed executed by the mayor furnishes no evidence and still less constructive proof of a compromise made in pursuance, of the power. It does not even recite the existence of any authority from the board of aldermen to make the deed, or that a compromise was made by the mayor and board of aldermen, by which the land described and purported to be conveyed was to be conveyed to any person. Little v. Frost, 3 Mass. R. 106 ; Ga'ler v. Commissioners, 1 Blacks. 354.
YI. It is proved by the records of the proceedings of the board of aldermen that no such compromise was made — but in fact the only conveyance authorized'didnot embrace the land in controversy,'which was at the time claimed by another person.
YII. The evidence offered by the defendant was competent and ought to have been admitted. 2 Starkie, 1020-21-24-25-26,1044. If the deed is prima facie evidence of the authority to execute it, yet it was competent for the defendant below to rebut the presumption by showing that the aldermen did not assent to or authorize the deed. The Mayor, &c., Colchester v. Lanton, 1 Yes. & Bea. 245 ; case of St. Mary’s Church, 7 Serg. & Rawle, 530.
1. The deed of the corporation of St. Louis under the corporate seal implies the authority of the officer executing it. 1 Ey. R. 268 ; 15 Wend. 25 ; 6 Serg. & Rawle, 12 ; 8 Halst. 183 ; 4 Yerger, 7. 2. The — section of the act of January, 1835, gives full power to compromise and settle with adverse claimants in any mode for any consideration, either by receiving payment from them for land or making payment to them for their claims and that in money or land, or by any other mode of adjustment, and therefore it was not necessary to the validity of a compromise that the party receiving a deed should have had an adverse claim to the land conveyed to him. 3. There being no evidence of the extent of Dillon’s or Dent’s claims, the resolutions of the board would authorize a conveyance to Morton of any land embraced by the claim of either of those individuals if made with their assent either written or verbal. 4. As the act requires no particular evidence of an adverse claim in order to a compromise, Page as the purchaser of Morton’s title under judgment and execution is not bound to go behind the deed to Morton to show what adverse claim Morton had, nor is such adverse claim a part of this title.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
