Woodson v. Skinner

'1. A power to “araml a sale” of a lot in the St. Louis common, made under the authorily of ‘e an act to authorize the sale of the St. Louis common,*’ approved March 18, 1835, is substantially ..pursued by declaring the lot uforfeited to the city of St. Louis.” B. The seventh section of the above act provided that the “ board” of aider-men of the city of St. Louis might, by resolution, &e., “ 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 te the “ mayor and aider-men” to “ annul the salé” upon the non-payment of interest* held, that.it Was the intent of the act that the body in which the legislative power of th'e city should at the time reside, should annul Ihe 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, Í839, 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 he 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. II. 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 léase 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 f>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 1 An act to authorize the sale of the St. Louis common,5 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. 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.5 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 beea éxecuted 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? mouths after due, the mayor and aldeimen 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 off $5737 20, being the amount bid for the lot aforesaid, and receive a deed i'n fee simple, with special warranty only against the inhabitants of the city of St. Louis, and all persons claiming under the» } 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. AtwooB1, (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 vol-«me 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, 1041, 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 thém, the ffight 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 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 o£ 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 named, are hereby annulled, and are declared null and void.” Plaintiff then introduced Robert Simpson, who testified that he was comptroller of the city of St. Louis in the year 1841, and had the control of the St. Louis common. He knew of the sale of the premises to N. B. Atwood, and that he failed to pay the rent due under the lease to him more than six months after it was due, and that he was actually unable to pay. It was the practice to put the accounts in the hands of a collector, and if they were not paid to put them in suit. He had no doubt it was so done in this case. On cross-examination, witness stated that he had never called on Atwood for the rent, and could not recollect the time when the rent bills were put in the hands of the collector. The court, upon motion of plaintiff, gave the following instruction : “ If the jury find from the evidence that, at the time of the passage of the resolutions offered in evidence, (ordinances Nos. 766 and 2826,) a year’s rent or interest, to be paid by N B. Atwood to the mayor, aldermen and citizens of the city of St. Louis, by virtue of the indenture given in evidence, dated March 10, 1837, was in arrear and had remained unpaid for six months after due, then said sale to Atwood was by said ordinance annulled ; and if the jury believe in the genuineness of the instruments by which plaintiff deduces title from the city as read in evidence, they must find for the plaintiff.” To the giving of this instruction, the defendant duly excepted. An instruction asked for by the defendants was given. Several instructions asked by the defendants were refused by the-court. It is unnecessary to set these forth, as all the questions of law discussed arise upon the ¿riving of the instruction above set forth. There was a verdict and judgment for plaintiff, and defendants appealed. 1. The lease to Atwood was not annulled by ordinances 766 and 2826. The act of March 18, 1835, authorized a lease. Erom an examination of the character of the act,, we may see that the prominent features take rightly a leasehold character. The subject of the act — commons—are no.t properly or generally subjects of sale, .(See Bac.- Abr. tit. Common.) The object of the act was to provide a yearly fund for the support of schools. Though styled “ An act to authorize a sale,” &c., it in part authorizes only a sale to fix the rent, ór a contract to sell, whereby at a public auction the bidder states what sum he .may pay in ten years or more. He is forbidden to pay under ten years, and he is not bound to pay it any time. He is to enter into covenant to pay rent for fifty years, and on a reassessment after fifty years to .pay a rent on the re-assessment. These peculiar and remarkable features of the act show that the prime object was not to sell, in order to transfer the absolute property, but to make the .sale a means of ascertaining the amount of rent to be paid. The indenture of March 10, 1836, vested a leasehold in Atwood. It is not a deed of conveyance upon a sale; no words of conveyance, or covenant for the conveyance of a fee are to be found in it. It merely gives permission to receive a deed of conveyance in the future. The words used are “demised, grant and to farm let.” These, are the operative words of a lease. The term extends to fifty years certainly ; and if the provision concerning the extension is valid, for fifty years longer, at least, subject to re-assessment, If that provision be pronounced invalid, it is limited to fifty years. In Pbwd. 271, “ a lease for ten years, lessee to pay in tiles at the end of every ten years, and have a perpetual demise of «the premise, from ten years .to ten years, forever; it was held that it was a good lease for ten or twenty years, and that if the* condition had been properly worded, it would have made a good; perpetual demise.” Bac. Ab. Leases, 633, 835, 890. Thus-the-indenture has all the qualities of a good lease, and-none of a conditional sale. “ In a lease to a man for eight years, rendering rent yearly,, and if he should-hold over to have the fee to him and his heirs forever, on covenant for rent brought within eight years : held,, it was a lease and not a conditional fee.” Plowd. 271. “-When a lease is made by A. to B. for five years, with the privilege of a fee-on paying a certain sum in two years,” this-is held by Littleton to be “ a lease united to a conditional fee,. pro tempore.,:> Plowd. 271, Co. Litt. II. p. 11. This decision is misquoted and misapplied (18 John. 174). See City of St. Louis v. Morton, (6» Mo. Rep. 480). If this indenture is a conditional deed, the law of forfeiture is still applicable, so far as the lease extends, and the forfeiture must betaken in the same way. (18 John. 174.) The city had power-to make the lease. (13. Mo. 606. The leasehold interest of Atwood can be divested against his will only by forfeiture orejectment. As there is an interest' in possession under the lease, and an interest in future under the permission to receive a deed, which are entirely separable,, so the penalties are separable which/affect either of them. A penalty may be imposed by- which, under certain contigencies,. our right to the fee may be cut off, yet leave the lease good. If the city intends to annul the sale, it must proceed in the manner-directed in the act. If it would forfeit our lease (the act and deed being silent) it must proceed according to law. The common law requires, as-necessary to a forfeiture, a demand of the rent, on- the ground,, at the last hour of the last day. (Dumfries’ case, 4 Coke,. Í19; 1 Saund. 287 ; Cowp. 804 ; 17 Johns. 66 ; 1 How. 211.) Our statute requires an action of ejectment by landlord; as a substitute for the demand under the common law. Neither-of these is claimed to- exist in. this case. Ordinances 766 and 2826 did not affect the leasehold interest created by the indent ture of March 10, 1836. The first attempted it in vain. The second did not attempt to affect it. The right of “ forfeiture” is not reserved to the city of St. Louis. The city council and the city of St. Louis are strangers to our contract. The forfeiture claimed is exercised under an assumed power to forfeit reserved in the deed. If no power to forfeit is found in the deed, the forfeiture is invalid. The power to annul the sale is not a power to forfeit. • The power to annul the sale was given by the act of Mareh 16, 1835, to the “ mayor and aldermen,” and not to the corporation. No mention is made of a power to their successors. The charter under which they acted as the agent of the corporation was extinguished February 8th, 1839. In this new charter there is no reservation of the power to annul the sales made by the “ mayor and aldermen.” See Charleton R. 342. Ordinance 2826, if operative at all, affects only whatever interest, right or contract we have for the fee. It leaves the lease, under which alone we claim, unaffected and unimpaired. The city authorities may have meant to forfeit the lease, but did not adopt apt means to accomplish their object. This, ordinance was passed without any demand of rent, and without notice to those claiming under the indenture of March 10, 1836 ; also long after the conveyance to Laughton and Arm- . strong, on June 23, 1848. 2. The annulment of the sale to Atwood did not revest a fee simple in the city of St. Louis. It was not proven that the city, before the sale to Atwood, was the absolute owner of the. premises in fee simple. (Reily v. Chouquette, 18 Mo. 225; see also 1 McLean, 41; 6 Wheat. 597 ; 2 Kent’s Com. 277, 262; 1 Black. Com. 475; Co. Litt. 2 ; 1 Hallam’s Mid Ages, 165 ; 6 Mo. 524, 481 ; 11 Mo. 150; 13 Mo. 611, 431; 6 N. H. 269.) 3. The verdict of the jury as to damages was not sustained by the evidence.