text:
    Goff, Appellant, v. Mulholland, Respondent.
    1. Accord -without satisfaction is not a good defence to an action of trespass; so where a lot of ground is wrongfully entered upon and levelled even with the grade of a street, the fact that such trespasser, after commencing Jhe grading of the lot, agrees with the owner of the lot to curb it in return for the privilege of carrying away the earth from its surface, if such agreement remain unexecuted, will not be a bar to an action to recover damages for the trespass.

      Appeal from St. Louis Land Cowt.

    This was an action to recover damages for an alleged wrongful entry by defendant upon a lot of ground belonging to the plaintiff and a wrongful removal of earth from the same. The defendant admitted the entry and the removal of the earth and levelling of the lot, and set up as a defence that the same was done by the permission and sanction of the plaintiff. The lot was levelled even with the grade of the street. In the course of the examination of several witnesses, the defendant put this question: “ On how many sides would it have been necessary to build a wall to protect Mr. Goff’s lot from caving down in the condition in which it was before it was graded ?” The witness in response stated the extent and probable cost of the wall. The court, at the instance of the plaintiff, gave the following instructions: “ 1. If the jury believe from the evidence that the defendant entered upon the lot of ground of plaintiff, as stated in the petition, without the consent or knowledge of plaintiff, and dug the earth and carried the same away, the law is for the plaintiff and the jury should find accordingly. 2. The jury, in their estimate of damages, may take into consideration the object and purpose for which plaintiff intended to appropriate the lot of ground ; and if the defendant, knowing the property not to be his, wickedly to benefit himself without regard to the injury he thereby done plaintiff, entered on said lot, dug down the earth, and converted it to his own use, the jury may render exemplary damages for the injury done, and likewise the value of the earth taken therefrom.”

      The court gave the following instructions at the instance of the defendant: “ 1. If the jury believe that Mulholland, after the grading of the lot was commenced, agreed with Goff to curb the lot by way of compensation for taking the earth therefrom, then, whether he has so curbed it or not, they will find for defendant. 2. If the jury believe that the plaintiff knew of the proposed grading of the lot by defendant, or became aware of it while it was going on and made no objection to it while the work was progressing, this is a circumstance from which the jury may infer a contract or understanding between plaintiff and defendant in relation to the grading of the lot; and if they find that any such contract or understanding existed they will find for the defendant. 3. If the jury believe from the evidence that the plaintiff assented to the grading of his lot in the petition described by defendant, and that no more ground was taken than was sufficient for the judicious grading of the lot, then defendant is not liable for a trespass, and the plaintiff can not recover in this action.”
    The jury found for the defendant.

      Cates and Goff, for appellant.
    I. The court erred in admitting illegal and incompetent testimony; also in giving the instructions asked by defendant. (1 Bac. Abr. 22 ; 2 Watts, 424 ; 3 J. J. Marsh. 479 ; 8 Ohio, 393 ; 1 Stew. 476 ; 2 Keble, 690 ; 23 Wend. 342; 1 Smith, Lea. Cas. 383 ; 19 Mo. 204, 360.)

      Gantt, for respondent.
    I. The court did not restrict any witness improperly in testifying ; nor was illegal and incompetent testimony admitted in behalf of defendant. The question with respect to the wall was pertinent. The instructions given for the defendant contained no error. The plaintiff sought to recover as for a trespass quare clausum fregit. The agreement made after the commencement of the grading was a bar to an action in that form. (17 Mo. 585 ; 19 Mo. 152.) The plaintiff did not ask an amendmeut of his petition.
   Napton, Judge,

delivered the opinion of the court.

The testimony in relation to the necessity of building a wall around three sides of the plaintiff’s lot, and the expense which such a wall would occasion, was, in our.opinion, irrelevant and incompetent. The plaintiff had a right to retain his lot in such a shape and condition as suited his fancy, and it did not concern the defendant to make calculations as to the amount of expenditure which the indulgence of the plaintiff’s taste might occasion. The question for the jury was, how much the value of the lot was diminished, by the defendant’s trespass, for the purposes to which it was designed ; and it was not, to what expense the plaintiff would be put in protecting it, or in building on it, or whether, upon the whole, the plaintiff might not find it to his advantage to put a business house upon it; for which purpose, all the testimony seemed to concur, the grading of the lot was really advantageous.

The first and second instructions given for the defendant were erroneous. A plea of accord without satisfaction is not a good plea in trespass. (2 Whea. Selwyn, 1354.) An agreement to curb the lot, if not executed, is no bar to the action, and such an agreement could not amount to a waiver or condonation of the trespass. A party can not be turned round from one cause of action to another unless the second is received as a waiver of the first or as a satisfaction of it. In James v. David, 5 T. R. 141, the plea to an action of trespass was that both parties had agreed to settle all matters in dispute between them by the payment of a certain sum on one side and by entering into a bond with a penalty that neither would commence an action against the other, but the judges held the plea to he bad. Mr. Justice Ashhurst said, that in order to found an action on this agreement, the plaintiff must have stated not only the agreement, but also that he tendered an obligation in ¿£100 ready executed to the defendant, and that the defendant refused to execute,” &c. Here the question does not arise upon the form of a plea, but it is manifest from the evidence that the agreement, which is set up as a- bar, is one of which the plaintiff could not have availed himself, as it was only proved by his own declarations. If the plaintiff had received a sum of money in satisfaction of the trespass, that, of course, would be a bar; so, if he had received the defendant’s note for that sum in satisfaction of his demand for damages; but a mere verbal promise to pay a certain sum of money or do a certain act, if not performed, is no satisfaction. Such promises could hardly amount to an accord, and certainly not to accord and satisfaction, and are no bar to the action, although, if amounting to an accord, 'they might be evidence upon the quantum of damages.

The other judges concurring, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Ridgley, Defendant in Error, v. Stillwell, Plaintiff in Error.
    1. A parol lease for a term of years lias the force and effect of a tenancy from year to year.
    2. Justices of the peace can not specifically enforce a parol contract concerning land on the ground that it has boon taken out of the statute of frauds by part performance.
    3. A. let certain premises to B. for a term of years; the letting, being by parol, had the force and effect at law of a tenancy from year to year. A. gave B. due notice to quit, and brought his action of forcible detainer before a justice of the peace. B. relied for a defence upon the fact that he had entered upon said premises under a, parol lease for ten years, while the building thereon was not completed, and had made improvements thereon, and had paid rent under said parol agreement. Held, that the justice of the peace had no jurisdiction to enforce the equities arising out of such a defence, and that, if the defendant was entitled to the specific enforcement of the parol agreement, he might have enjoined in a court of competent jurisdiction the proceedings before the justice until his equity could be determined.

      Error to St. Louis Land Cowrt.

    This was an action of forcible entry and detainer brought before a justice of the peace March 21,1857, and removed to tbe land court by certiorari. The plaintiff proved that defendant went into possession of the premises in March, 1851, under a verbal letting; that due notice to quit was given on the 21st of August, 1856; also a written demand of possession on the 19th March, 1857; also, the monthly value of the rents, &c. The defendant proved that the plaintiff put up the building on the premises, which was not entirely completed when the defendant went into possession. The defendant offered to prove that in the month of March, 1851, the plaintiff, by a verbal agreement with the defendant, rented the premises in question to the defendant for the term of ten years from March 15,1851; that under said agreement the annual rent was fixed and was to be determined by computing ten per cent, on the cost of the land and fifteen per cent, on the cost of the building ; that the defendant entered the premises under said agreement, and made improvements in the building by putting up fixtures and partitions ; that he had occupied the premises and carried on his business from the time he entered to the present, and that he had paid rent to the plaintiff from time to time under said agreement. The defendant also offered to prove the cost of the land and the building erected thereon, for the purpose of showing what the annual rent of the premises would amount to under said agreement. On the objection of the plaintiff, the court ruled out this testimony. It was not proved that the rent paid by defendant to plaintiff was accepted by the latter under the alleged agreement set up by defendant.
    The court gave the following instructions at the instance of the plaintiff: “ 1. If the jury find from the evidence that the defendant Samuel Stillwell became the tenant of the plaintiff Stephen Ridgley on the 15th day of March, 1851; that there was no written lease or agreement between the parties regulating such tenancy ; that said Stillwell was the tenant of said Ridgley on the 21st day of August, 1856, occupying the premises described in plaintiff’s complaint; that on said 21st day of August, said Ridgley caused a copy óf tlie notice read in evidence to be served on said Stillwell; and that said Stillwell continued in the possession of said premises until after the institution of this suit; then the plaintiff is entitled to recover.”
    The defendant asked and the court gave the following instructions : “2. If the finding is for the plaintiff, the jury, in estimating the rents and profits, may take into consideration what would be a fair and reasonable rent for the premises from the time the defendant’s tenancy terminated. 3. The plaintiff can not recover in this action unless he has shown in evidence to the satisfaction of the jury that he let the premises in question to the defendant; that defendant went into possession of the premises as tenant of the plaintiff under such letting; that the time or term for which the premises were let to the defendant had fully elapsed before this suit was begun; and that defendant wilfully held over or continued to occupy the premises after the termination of the time for which they were let to him and after demand had been made 'upon him in writing by the plaintiff for the deliverance to him of the possession of said premises.” The court, of its own motion, instructed the jury as follows : “ 4. If the jury find the notice to quit, given in evidence in this case, was served on the defendant on the 21st day of August, 1856, then the time for which the premises were let to the defendant terminated on the 15th day of March, 1857.”
    The defendant also asked the following instructions, which the court refused: “ 5. If the plaintiff, in the year 1851, by a verbal agreement with the defendant, let the premises in question to him for a term of years and reserved rent therefor; if the defendant went into possession of the premises as the tenant of plaintiff under such verbal letting, and if the time or term for which the premises were so let to the defendant had not fully elapsed before this suit was begun, then the plaintiff can not recover in this action and the jury should find for the defendant. 6. If the plaintiff, by a verbal agreement, let the premises in question to the defendant, which letting began on the 15th of March, 1851, and was to continue three years ; if the defendant in pursuance of such letting entered the premises, and if he has continued ever since in the peaceable possession of the premises to the time of bringing this suit, then the plaintiff is not entitled to recover in this action. 7. The notice read in evidence which was served on the defendant on the 21st day of August,
    1856, is not sufficient to terminate the tenancy of the defendant created by the verbal letting given in evidence, unless it has been shown in evidence to the satisfaction of the jury that said notice was served upon the defendant while on the premises in question, or on some one occupying said premises under the defendant, or his agent or servant, and that such service was full sis months before the 15th March, 1857.”
    The jury found for the plaintiff.

      Krum Sf Harding, for plaintiff in error.
    I. The only point made on behalf of the plaintiff in error is that the court erred in excluding the proof offered by him. Thq^ offer included, 1st, a parol demise for ten years; 2d, the entry of defendant under the demise ; 3d, improvements made by the lessee after going into possession; 4th, payment of rent under the agreement. That these facts took the letting or agreement out of the statute of frauds, see 15 Mo. 365; 18 Mo. 78; 26 Mo. 221; 7 Conn. 224, 342 ; 2 Hill, 421; 1 Sandf. Oh. 579 ; 14 Verm. 440 ; 8 N. H. 9 ; 1 Root, 77,142, 233, 497, 594 j 2 Root, 191; 3 Stew. 207; 9 Pet. 86.

      Knox Sf Kellogg, for defendant in error.
    I. The evidence offered was properly excluded.
   Richardson, Judge,

delivered the opinion of the court.

By the statute of frauds, the estate in this case, being created by parol, had only the force and effect of an estate at will, (1 R. C. 1855, p. 806,) which is construed to operate as a tenancy from year to year. (Kerr v. Clark, 19 Mo. 132.)

The theory of the defence which the defendant proposed to make is, that part performance of the parol contract took it out of the statute and entitled him in equity to a specific performance; but this proceeding was for an unlawful de-tainer, which was necessarily commenced before a justice of the peace, who had no power to inquire and decide whether the contract ought to be enforced and to give the equitable relief the defendant sought. If the defendant was entitled to have the parol agreement executed, his course was to have enjoined, in a court of competent jurisdiction, the proceedings before the justice until his equity could be determined.

The judgment will be affirmed, with the concurrence of the other judges.


author: EichaRDSON, Judge,

text:
    Whittelsey et al., Plaintiffs in Error, v. Kellogg et al., Defendants in Error.
    1. A call in a deed for a boundary certainly ascertained will prevail over a call for distance.
    2. The construction of deeds- is a matter for the court and not for the jury ; though it is the province of the jury to determine where the boundaries called for in a deed are located, it is the province and duty of the court to declare what the boundaries are that control the location.
    3. Although a witness, a surveyor, should be improperly permitted to give his opinion upon a matter of law, as to declare what are the controlling calls of a deed, a judgment will not be reversed for this impropriety, if the opinion given be substantially correct and such as can not have prejudiced the party complaining of it.

      Error to St. Louis Land Court.

    This was an action in the nature of an action of ejectment. Both plaintiffs and defendants claim title under Thomas M. Knox. Knox was the owner of a tract of land fronting 218 feet six inches on the Garondelet road, in the city of St. Louis. This tract was the north part of a tract known as the Petit tract. This tract interfered with the common of St. Louis and with land'assigned to the public schools. Knox obtained title by compromise with the city of St. Louis. In 1843 and 1844 Knox executed three, several conveyances to Larkin Deaver. The descriptions of these deeds are sufficiently set forth below, in the opinion of the court. Defendants claim title under L. Deaver. Plaintiffs claim title by virtue of a quit-claim deed from T. M. Knox to D. Dorwart, dated October 22,1845. The question to be determined in this cause is whether the land sought to be recovered was embraced in the deeds of Knox to Deaver ; and this question is decided by determining whether said deeds embraced the whole of Knox’s land, or, rather, whether the land thereby conveyed extended as far north as the north line of the Petit tract, which was the south line of the Lami or Cerré tract. The court ruled in substance that the call in the deed of Knox to Deaver, dated March 25, 1844, for the lot of Cerré on the north brought the land sought to be recovered in this suit within the description in said deed. During the trial the court asked a witness, a surveyor, “ liow, as a surveyor, without any knowledge of the facts and that surveys had been previously made, he would bound said lot described in deed of June 7, 1843,” the deed from Knox to Deaver ? The witness was permitted, against the objection of the plaintiffs, to respond to this question and to similar questions with respect to the other deeds of Knox to Deaver.
    The jury found for defendants.

      Whittelsey, for plaintiffs in error.
    I. The court erred in asking Cozens how, as a surveyor, he would run the lines of the deed of June 7, 1843. This was a question for the court to determine. (24 Mo. 113; 4 Hawks, 64; 4 Monr. 63 ; 1 Dev. & Bat. 425.) The court, in its instruction, submitted a matter of law to the jury. "What are the boundaries is a question of law; the place of the boundaries is a question of fact for the jury. (Dev. & Bat. 425; 4 Hawks, 64; 4 Monr. 51; 9 Mo. 581; 21 Mo. 210.) Known and visible monuments will control the other calls of a deed. The descriptions in this case were taken from actual survey. The corners established and existing were actual monuments. (15 Mo. 89.) Courses and distances of actual survey will prevail over the less certain call of adjoining owners. (11 Conn. 382; 5 Ham. 434; 9 Cranch, 178.) When actual corners are established, they must control. (8 Mo. 555; 21 Mo. 170; 6 Mo. 219; 13 Mo. 697 ; 17 Mo. 191.) The instructions given were erroneous. The court erred in refusing the instructions asked by plaintiffs.

      Knox 8f Kellogg, for defendants in error.
   EichaRDSON, Judge,

delivered the opinion of the coui’t.

Both of the parties claim under T. M. Knox, and the question is whether Knox, by his three deeds to Deaver, conveyed all his interest in the Petit tract, so that there was nothing left on which his subsequent deed to Dorwart could operate.

The northern line of the Petit tract is coincident with the southern line of the Lami tract, and the first portion of the land which Knox acquired was a strip of fifty-two feet, taken from the northern side and running the whole length of it, which was bounded on the north by the Lami tract claimed by Cerré ; and, although there is some dispute as to Knox’s southern line, all the parties concede that his northern boundary was the southern boundary of the Lami or Cerré tract.

The first deed of Knox to Deaver, dated January 7, 1843, conveys, by a very clear description, all the land he owned in the tract west of a point on his northern line distant twelve chains and forty links from Carondelet avenue. The calls of the deed are “ commencing at a point in Knox’s northern boundary line, being distant, &c., thence, with said Knox’s northern bou/ndary line, north, seventy and one-quarter degrees west, seven chains and one link, to Knox’s north-western corner ; thence,” <fcc. After making this deed, he had remaining the eastern portion of the tract fronting 218 feet six inches on Carondelet avenue, and by his deed to Deaver of January 23, 1844, be conveyed tlie southern half of the residue fronting one hundred and nine feet three inches on Carondelet avenue. In this deed Knox assumed his lower line to be further south than it really was, but it is manifest that he intended to convey half of all he had. The portion left, after satisfying the two deeds already mentioned, was a piece bounded north by the Lami or Cerré tract, west by a part of the land first sold to Deaver, south by the part last sold, and east by Carondelet avenue; and this part he intended to convey by his third deed dated March 25,1844. The call in the description is “ beginning at the south corner of said Deaver’s lot (on Carondelet avenue), thence north 109 feet three inches to lot of one Cerré, being school lands, thence west along said Cerré’s line to a lot of said Deaver; thence south,” Ac. It is impossible to reach Cerré’s line without going to Knox’s extreme northern line, and as that line is so described as to be regarded as a monument, it must prevail over distance, which is most uncertain; for it is a familiar rule that the least certainty of description in deeds must yield to the greater certainty.

The legal construction of the deeds from Knox to Deaver was properly a matter for the decision of the court; for, though the jury must ascertain as a fact where the boundaries of a grant are, it is the duty of the court to declare what the boundaries are that control the location; (Doe v. Paine, 4 Hawks, 64;) and, under the circumstances of this case, the court properly might have charged that the land conveyed by the first and third deeds was bounded on the north by the Lami or Cerré tract, and that therefore nothing passed by the deed to Dorwart under which the plaintiffs claim.

The objection, that a witness was allowed to give his opinion as to the location of the land described in the deeds, may be answered by repeating what was said by this court in Evans v. Greene, 21 Mo. 210, that a judgment will not be reversed because “ a witness has given his opinion upon a matter of law, when we see that the opinion given was substantially correct and could not have prejudiced the party complaining of it.” The other judges concurring, the judgment will be affirmed.


author: Napton, Judge,

text:
    Hall, Appellant, v. Webb et al., Respondents.
    1. Quere, how far is a deed of trust conveying a stock of goods in trade and also all goods and stock that may belong to the grantor during the continuance of the trust valid and operative ?

      Appeal from Si. Louis Court of Common Pleas.

    This was an action for the possession of certain goods, wares and merchandise in possession of defendants, A. F.W. Webb and John H. Young. The plaintiff Hall sues as trustee under a deed of trust dated January 1, 1852, executed by Eestcome P. Perry. This deed of trust was made to secure the payment of two promissory notes for $10,000 each, both dated December 1,1851, and payable to the order of Thomas & Franklin — one on the first of January, 1855, and the other on the first of January, 1856. By this deed, which was recorded January 28, 1852, the said Perry did “ bargain, sell, transfer and deliver unto the said party of the second part, all the stock in trade, goods, wares and merchandise of every kind and description in' the hardware store, No. 86 North Main street, in the city of St. Louis, now occupied by said party of the first part, as well as all the goods and stock now in course of transportation belonging to said party of the first part, as also all the stock in trade of every kind which during the existence of this trust shall belong to said party of the first part either in said store or in any other store or place; hereby intending to convey to said party of the second part all the goods of every kind and stock which now belong or may during the continuance of this trust belong to said party of the first part, whether the same be in said hardware store or in any other store, or in course of transportation; to have and to hold,” &c. About the time of the execution of this deed of trust John H. Young became a partner of said Perry. Young continued to be a partner of said Perry until August, 1854, when he sold his interest in the partnership to Perry. Perry at this dissolution agreed to pay the partnership debts and to hold Young harmless. He executed a deed of trust upon the stock of goods to secure Young against his liability for the partnership debts. This deed was dated December 8, 1854, and was made to defendant Webb as trustee. Webb took possession under this deed the latter part of December, 1854. There was evidence tending to show that when the sheriff took possession of the stock of goods in the present suit, there was remaining on hand of the goods in the store on the first of January, 1852, but few packages, worth about eight or ten dollars.
    Hall, the plaintiff in the present suit, giving the bond required by statute, took possession of the goods sued for. He sent them to auctioneers and they were sold for 18,445.12.
    The court gave the following instructions at the instance of the defendants: “ 1. If the jury find from the evidence that, at the institution of this suit, the defendant Young was liable for debts contracted by R. P. Perry & Co. to a greater amount than the value of the property in the possession of said defendants ; that said property was delivered by said Perry to said defendants or either of them for the purpose of securing and paying said debts; and that the property in possession of said defendants at the institution of this suit was purchased by said Perry subsequent to the execution and delivery of the deed of trust under which the plaintiff claims, then the plaintiff can not recover. 2. If the jury find from the evidence that the property for the recovery of which this suit is instituted was purchased by the firm of R. P. Perry & Co. (composed of R. P. Perry and John H. Young) after the execution of the deed of trust to the plaintiff; - that the said firm of R. P. Perry & Co. was dissolved before the institution of this suit; that at the time of the dissolution it was agreed that said Perry should pay all the debts for which said firm was liable and should execute a deed of trust on said property to secure the said John H. Young from all liability on account of said debts; that he did execute such deed of trust; that at the institution of this suit the said firm was liable for debts so contracted to a larger amount than the value of the goods in possession of the defendants, then the plaintiff can not recover. 3. Even if the jury shall find from the evidence that there was a package or packages of the value of ten or twelve dollars in the possession of defendants at the institution of this suit, which was in the store of E. P. Perry & Co. at the execution of the deed of trust under which plaintiff claims, the plaintiff can not recover unless he required the defendants to point out said property before the institution of the suit, and defendants refused to do so, and then can recover the above property only, unless they find for the plaintiff under the other instructions given in this case. 4. The jury will find the value of the property at the time it was delivered by the sheriff to the plaintiff, and also assess the damages suffered by the defendants by reason of the property being taken out of their possession, not exceeding the rate of six per cent, per annum on the value of the property from the commencement of this suit until the present time.”
    The plaintiff asked the court to give the following instructions to the jury: “ 1. Usury, even if proved, is no defence to this action. 2. If the jury find from the evidence that E. P. Perry on the 7th day of August, 1854, bought the interest of defendant Young in the firm of E. P. Perry & Co. and continued the same kind of business at the same place and with the stock so bought by him, then the deed of trust given in evidence by the plaintiff attached upon the stock of said Perry, and continued to bind the same until the commencement of this suit. 3. If the jury find from the evidence that the deed of trust given in evidence by plaintiff was executed and delivered before or at the time the part-nersbip was formed between himself and defendant Young; that before said partnership was formed said Perry had transacted a hardware business at the same store and his stock constituted the same stock of the said concern at its commencement, and that said Perry on the 7th day of August, 1854, purchased of defendant Young his interest in the concern, and continued to carry on the same kind of business at the same stand, and also continued the stock in said subsequent business, then the said deed of trust continued to bind the stock of said Perry on the 23d day of December, 1854, and until the commencement of this suit. 4. If the jury find from the evidence that the deed of trust and notes given in evidence by the plaintiff were executed by Perry and delivered by him at or about the times of the dates thereof, and that said Perry, either by himself or as a partner of the firm of R. P. Perry & Co., composed of said Perry and said defendant Young, continued to do business in the same store named in said deed of trust, and that in August, 1854, the said firm was dissolved and said Perry purchased from said Young all his interest in said stock and continued the same business at the same place, then all the stock received by said Perry in said store after the said dissolution and purchase is bound by said deed of trust.” Of these instructions the court gave the first and refused the others.
    The jury found for the defendants and found the value of the property replevied to be $12,374.37, and assessed the damages at the sum of $1,767.38.

      Shepley and Polk, for appellant.
    I. The deed of trust was operative to convey to plaintiff all the property and stock of goods in the store at the time of seizure. So far as the grantor was concerned, the after acquired property passed by. it; so also as against every body. This was the rule in equity at a very early day. (1 Hare, 560 ; 4 My. & Cr. 408 ; 6 Man. & Grang. 247.) It is now the rule at law. (Abbott v. Goodwin, 20 Maine, 408 ; Maudlin v. Robinson, 11 Ala. 980 ; Floyd v. Morrow, 20 Ala. 356; 14 Conn. 255 ; 2 Story 630, 555 ; Pierce v. Emery, 32 N. PL 484; Page & Bacon v. Gardner, 20 Mo. 507.) But even if such a conveyance would not be sustained against creditors, yet defendants occupy no such position. The deed of trust was recorded and defendant Young had actual notice of it.
    • II. There was no evidence before the jury that authorized the giving of the first-instruction asked by the defendants. The property was not delivered to defendants or either of them for the purpose of securing and paying the debts of the firm of B». P. Perry & Co. The third instruction given is erroneous. It left out of view the property in course of transportation. It improperly makes it the duty of the plaintiff to point out the packages in the store at the time of the execution of the deed of trust. It is averred in the petition and .not denied in the answer that plaintiff demanded the goods before suit and was refused. If they had any thing belonging to plaintiff, it was their duty to deliver it or offer to deliver it. They refused to deliver any portion.
    III. The evidence as to the intention of defendants to send the goods to auction immediately is an element in determining whether the goods brought when sold a fair price; it should have been admitted.
    IY. The deed of trust is not void upon its face. The case of Brooks v. Wimer goes to no such extent.
    Y. Usury can hot, even if it exists, be taken advantage of by defendonts.

      Knox 8f Kellogg, for defendants in error.
    I. The deed of trust was void as creating a trust in favor of the grantor Perry. The necessary consequence of the deed was to hinder and delay creditors. The deed in effect provided that Perry was to remain in possession and buy and sell in the ordinary course of business until default in the payment of the notes secured, which were not payable until three and four years after the execution of the deed. (Brooks v. Wimer, 20 Mo. 503; 15 Mo. 459.) Besides, the property claimed was acquired after the execution of the deed of trust. (8 Maryl. 301.) At the dissolution Perry assumed the payment of the debts of the partnership, and agreed to secure Young against all liability on account of the debts of the firm, and gave him a deed of trust. Franklin & Thomas were the creditors of Perry only. The whole property was insufficient to pay the firm creditors. The debt due Franklin & Thomas was tainted with usury ; it was therefore void. The facts show that the deed of trust was made with intent to defraud the creditors of Perry.
   Napton, Judge,

delivered the opinion of the court.

The case of Mitchell v. Winslow, 2 Story, 639, referred to in the opinion of this court in Page & Bacon v. Gardner, 20 Mo. 511, can not be reconciled, in all respects, with the decisions of this court in Brooks v. Wimer, 20 Mo. 506, and several subsequent cases reiterating the same doctrine. So far as the case goes to sustain the judgment in Page & Bacon v. Gardner, no exception is designed to be taken to it, as the opinion and judgment in that case is not supposed to conflict with the views expressed in Brooks v. Wimer. But an examination of Judge Story’s opinion in Mitchell v. Winslow will show that he entertained views, in relation to assignments, totally adverse to the positions taken by this court in Brooks v. Wimer; and therefore, although the assignment in the case of Mitchell v. Winslow in many respects resem-. bles the present, Judge Story’s opinion upholding it can not be regarded authoritative here. In the case of Moody v. Wright, 13 Metc. 17, the. opinion of the supreme court of Massachusetts, wherein Mitchell v. Winslow is reviewed, seems to conform more nearly to the decisions made here, and in truth exactly accords with the theory upon which the present case was tried in the court of common pleas.

It is not necessary to pass upon the validity of the deed of trust made in 1852 to the trustee1 of Franklin & Thomas, who is the present plaintiff. It was treated as operative in the instructions given to the jury so far as the goods in store at its date were concerned. It purported to convey “ all the stock in trade, goods, wares and merchandise of every kind and description in the hardware store, No. 86 north Main street, St. Louis, and then occupied by Perry,” as well as “ all the goods and stock then in the course of transporta-tation belonging to said Perry; as also all the stock in trade of every kind which, during the existence of said trust, should belong to said Perry either in said store or any other store or place; thereby conveying and intending to convey to said trustee all the goods of every kind and stock which then belonged or during the existence of said trust should belong to said Perry,” <fcc. The notes, to secure which this deed was made, were payable in three and four years from date. There can be no doubt that it was the intention of all the parties to this instrument that Perry, the assignor, should remain in possession of his stock of goods thus assigned, and carry on his business as a hardware merchant; and the facts proved upon the trial fully established that this was understood by all parties as the proper construction of the deed. In this view of the case the instruction given by the court in relation to the small package, worth five or ten dollars, which was supposed to be part of the original stock conveyed to plaintiff in 1852, could not have been prejudicial to the plaintiff, and its propriety becomes perfectly immaterial.

But assuming the assignment to Hall as prima facie valid, and adopting the principle upon which the case was tried, that the stock on hand in 1852 passed by the assignment, the sheriff would hardly be authorized to take possession of a stock of goods worth twelve or fifteen thousand dollars, because there happened to be in the stock a single package worth ten dollars which he was justified in seizing ; and the effect of a reversal for a misinstruction on this point, if any such had occurred, would only be to reduce the verdict to the extent of the value of this single package. Such a course would only lead to an unnecessary accumulation of costs.

The court committed no error, in our opinion, in excluding proof of the defendant’s supposed intentions in relation to the disposition of the property. What an owner intends to do with his property, whether he designs to sell it at auction or privately, or to retain it for his own use, or to give it away, is not a matter which concerns a trespasser. The point of inquiry is its value, and although the owner may design to destroy it or burn it up the next day, that circumstance does not diminish or in any way affect the responsibility of a stranger who illegally and wrongfully takes possession of it. All the testimony offered in this case concerning the value of the goods, either by auction sales or otherwise, was permitted, and the verdict of the jury has fixed the value at a sum exceeding, indeed, what seems to us as a fair valuation, but which we have no power to change, sanctioned as it has been by the court which tried the case.

Judge Scott concurs.

The judgment will be affirmed.


author: Scott, Judge,

text:
    St. Louis Public Schools, Appellant, v. Risley, Respondent.
    1. If the plaintiff in an action of ejectment fail at the trial to establish his right to a recovery upon the title relied on by him, he may resort to another title; it is improper to require him to elect one of two titles, upon which he announces his purpose to rely, as that upon which he must base his right to a recovery, even though such titles be inconsistent with each other.
    ■ 2. Where an instrument purporting to be the act of a corporation has the common seal of the corporation attached, and the signatures of the proper officers are proved, it will be presumed that such officers had authox-ity from the corporation to execute the same.

      Appeal from Si. Louis Land Cowl.

    This was an action in the nature of an action of ejectment by the Board of President and Directors of the St. Louis Public Schools against William Risley for the recovery of a portion of block No. 856 in the city of St. Louis. The cause being called for trial and the jury sworn, the counsel for the plaintiff explained to the court and jury the general nature of the case, and stated in general terms wliat he expected to prove before the case was finally submitted to the jury for their consideration. He stated that he expected to show title in plaintiff by virtue of an assignment dated December, 1855, by the United States to the city of St. Louis for the support of schools in conformity to the various acts of Congress. The counsel further stated that plaintiff had another title, entirely distinct from that under the above assignment, which he expected to adduce proof to sustain. He stated that he expected to show that the premises in controversy, in the years 1820 and 1821, when the state of Missouri was admitted into the Union, were west of the main channel of the Missouri river, and were covered with the waters of said river when it was at the ordinary or middle stage, being below the top of the main bank or shore ; that since 1850 said premises have been as high as the top of the shore of the river; that the state of Missouri, by act of the general assembly of March S, 1851, (Sess. Acts, 1851, p. 578,) transferred all the right, title and interest of the state in and to said premises to the city of St. Louis; that the legislature by an act approved November 23, 1857, (Sess. Acts, Adj. Sess. 1857, p. 488,) authorized and empowered the mayor of the city of St. Louis, in the name of the city, to convey certain real estate, including that in controversy, to the plaintiff; that the mayor of St. Louis did, by a deed dated December 26, 1857, convey all the interest of the city in said premises to the plaintiff. The counsel for the defendant here moved the court to compel the plaintiff, before introducing any evidence, to elect which one of said titles “he would introduce, and to compel the plaintiff to rely on the title so elected and no other.” The plaintiff moved the court not to compel an election until after the evidence was all in and before the cause was submitted to the jury. The court required the plaintiff to elect. The plaintiff, under protest and exception, elected the title derived through the city of St. Louis and state of Missouri; and read in evidence in support thereof the said act of the general assembly, approved March 3, 1851; (see Sess. Acts, 1851, p. 578 ;) also said act of November 23, 1857. (See Sess. Acts, 1857, Adj. Sess. p. 488.) The plaintiff then offered in evidence a deed of conveyance dated December 20, 1857, purporting to be executed by the city of St. Louis, by John M. Wimer, its mayor, under and by virtue of the authority of the said act of the general assembly approved November 23,1857. The deed was duly acknowledged and recorded. The court, on the objection of the defendant, refused to admit said deed in evidence. The plaintiff then offered to introduce evidence in support of the title under the assignment to the schools by the United States. The court refused the offer on the ground that the plaintiff had elected to rely on the title derived through the city of St. Louis and the state of Missouri. The plaintiff took a nonsuit, with leave, &c.
    Casselberry, for appellant.
    I. The plaintiffs had a right to introduce all of their titles in evidence. The court erred in compelling plaintiff to elect.
    II. The court erred in excluding the deed from the city to the plaintiff. The act of November 20,1857, conferred all the necessary power on the mayor to convey the land in controversy to the schools. (2 Hill, 489; 13 Wend. 325; 6 Mo. 475 ; 13 Mo. 611; 18 Mo. 220.) For more than twenty years the premises in controversy were used as a wharf. An enabling act was necessary before the city could convey to the schools. The city holds the public thoroughfares for the public. The legislature could as well authorize the mayor to make the conveyance as the council and mayor, or the council alone. The mayor was the sworn representative of the people. The act does not say he shall make the deed ; it says that he is “ authorized and empowered” to do so. It is to be presumed that he reflects the will of the people.

      E. Bates, for respondent.
    I. The plaintiff sets up two titles not only different from each other, but flatly contradictory ; they can not stand to-getlier. It was altogether proper for the court to refuse to try both the contradictory titles in the same action. The practice at common law of requiring a party to elect which of two inconsistent claims or defences he will rely upon is too familiar to need a reference to authorities. The power of the court in this regard is a discretionary power. (8 Mo. 334; State t. Fulkerson, 14 Mo. 49; Mooney v. Kennett, 19 Mo. 551; Page v. Freeman, 19 Mo. 421.) Duplicity and multifariousness are, under our code, still objections to pleadings. (17 Mo. 228.)
    II. The deed from the mayor to the schools was properly ruled out. The deed was made by virtue of a special grant of power by statute, and the power was not strictly pursued. Besides, the act of the general assembly, as a grant of power, was void. The city of St. Louis is a person in law competent to grant and convey its lands. The legislature has no power to authorize a stranger or one of the servants of the city to grant away its lands.
   Scott, Judge,

delivered the opinion of the court.

"We do not see on what ground the court compelled the plaintiff to elect on which of his titles he would base his right of recovery. This is an action of ejectment, and the plaintiff’s right to the immediate possession of the land in controversy is averred in the petition. Now if the plaintiff, in making out his case, should fail to establish one title on which he relied, on what principle would he be restrained from falling back on another title which showed his right to a recovery ? Is not this every day’s practice? We do not see what connection the power assumed by the courts, of compelling the party to elect when causes of action are improperly joined, has with this question. Here there is but one cause of action for one specific thing, and there can be no reason why, if the plaintiff fails to establish his right to recover by one title, he should be denied the privilege of resorting to another.

It will not be maintained that the legislature can authorize any person or officer to convey away the property of a corporation against its will. But the efficacy of the deed, under which the plaintiff claims, does not necessarily stand on the act of the general assembly authorizing the mayor of the city to execute it. The objection, that this deed is not the act of the corporation, does not come from the corporation itself. From any thing that appears, the corporation is satisfied with the act of the mayor, and is willing to abide by it. If the corporation had denied the authority of the mayor, we know that there would have been no want of evidence of the fact. When a municipal corporation is satisfied with the act of its agent, and is willing that it should stand, there should be a solid reason why third persons, who have no interest in the matter, should be permitted to invalidate it. If an act has been done for and in the name of another, and he, being-aware of it, does not object to the want of authority in his agent, why should a third person be suffered to do it for him ? These considerations serve to show the reasonableness of the rule in law, that when the common seal of a corporation appears to be affixed to an instrument and the signatures of the proper officers are proved, courts are to presume that the officers did not exceed their authority. ' The contrary must be shown by the objecting party. (Angel & Ames on Corp. Sec. 224 ; The President, Managers & Company of the Berks & Dauphin Turnpike Road v. Myers, 6 Serg. & Rawl. 12.) This is not a case involving the question whether a corporation under its charter has authority to do an act. Where the question is as to the power of a corporation as an entire body to do a thing, there, of course, the affixing of the seal is no evidence of its authority. But when an act is within the powers of a corporation, and its existence is witnessed by an instrument clothed with the formalities requisite to bind it, there is no hardship in the rule which imposes on one objecting to its validity the necessity of showing that it was without the assent,necessary to its existence.

Reversed and remanded.


text:
    Blackmore, Appellant, v. Boardman, Respondent.
    1. A covenant for perpetual renewal of a lease is valid.
    2. A covenant for renewal of a lease is an incident to the lease and will pass by an assignment of the unexpired term; a sale by the sheriff under an execution of the interest of the lessee in the land will pass to the purchaser the covenant for renewal.
    3. The secretary of the board of directors of the St. Louis Public Schools is a proper person to whom to deliver applications for renewal of leases made by said board with covenants of renewal. The declarations of a deceased secretary, made when applied to in behalf of an applicant for renewal before the expiration of the time within which demand of renewal should be made, are admissible in evidence to show that the application for renewal had been received by him as secretary in due time.

      Appeal from St. Louis Land Court.

    This cause was heard before the supreme court upon the following agreed statement of facts: “ This was an action of ejectment brought by the plaintiff Blackmore against the defendant Boardman to recover possession of the premises in the petition mentioned and described, being a lot or parcel of ground situated in the city of St. Louis, containing one arpent and 66-100. The defendant answered, and the cause, by consent, was tried by the court. The facts as they appeared on the trial were as follows : By deed dated October 25, 1847, the board of President and Directors of the St. Louis Public Schools demised and leased to the plaintiff Blackmore a certain tract or parcel of land of upwards of six arpens, of which that mentioned in the petition is part, for the term of ten years, commencing from and after Octo-her 15,1847. Said lease/contained a covenant for renewal in' the following terms: £tAnd it is hereby covenanted and agreed by and between, the said parties, that at the end of the term hereby demised this lease shall be renewable for the further term of ten years; and so on from time to time perpetually at the option of the party of the second part, his executors, administrators or assigns, he or they giving to the party of the first part, in every instance, a notice in writing of his or their wish to renew the same three months at least before the end of the term. And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with this exception, that the annual rents to be reserved in every renewal shall be six per cen-tum upon the value of the demised premises, exclusive only of improvements thereon placed by the said lessee or his legal representatives, if any, which value shall be estimated by disinterested freeholders of the city of St. Louis, one of whom shall be selected by the party of the first part, and the other by the party of the second part, his executors, administrators or assigns ; and to be paid quarterly N
    “ On the 6th of January, 1857, said premises so leased to Blackmore were duly sold by the sheriff of St. Louis county to Augustus W. Lewis under executions on judgments obtained by one William Lingo against said Blackmore in March and May of 1856, and the sheriff conveyed the same to said Lewis by deed dated February 12, 1857, which deed being duly acknowledged was recorded February 23, 1857. A few days after his purchase, Lewis went into possession of that portion of the premises sued for, and while in possession conveyed the whole of said tract of land to John F. Hagne, by deed dated February 25, 1857. The defendant Board-man holds under said Hagne? C--J ' ci ' [by • 1- f! Í, ■>' t “ Previous to the expiration of the original lease, a notice in writing or application for renewal on the part of Hagne, in due form for that purpose, was left at the office of the board of Public Schools. The evidence on that subject was as follows : The notice was left at the office of said board on July 3, 1857, with a man in the office of said board, but who was not one of the board, who at the time was either dusting or sweeping out the office. The secretary was not in at the time, and the man who was there took the notice with instructions to hand it to the secretary as soon as he should come in. John H. Watson was the secretary at the time to the board. He has since died. He (Watson) a day or two after acknowledged to the witness Kurlbaum — who left the notice at the office of the board July 3, 1857, and who called there to see about the same — that said notice had been received. There was no entry on the minutes of the proceedings of the board showing when said notice was received, though it was shown that the same was officially before the board August 11, 1857, being the second meeting of the board held after said notice was left at the office. To the testimony of the said witness Kurlbaum as to what was said to him by the deceased secretary, plaintiff objected at the time; but the court overruled the objection and plaintiff duly excepted. The covenants of the lease had in all other respects been complied with. Plaintiff Blackmore, within the time provided for that purpose in the clause for a renewal, also made application therefor, and whilst his application was pending on September 15, 1857, Hagne sent into the board a remonstrance in writing against the granting of a renewal to him, setting forth his own claims as assignee and again asking for a renewal to himself. In fulfilment of their covenant for renewal, (as they supposed and intended,) the board on December 1,1857, executed the lease to plaintiff Blackmore upon which this suit is founded for a portion of the premises, and for the residue thereof executed leases to other parties holding or claiming under plaintiff. Said leases are dated December 1, 1857, and are for ten years from October 15,1857, with like covenants of perpetual renewal.

      “ Three questions arose upon the trial, which are the only ones now submitted to the court; all others, whether consisting of defects or errors of pleading or of practice on either side, being hereby expressly waived. The first is, whether the covenant contained in said lease to Blackmore, being a covenant for perpetual renewal, is legal ? Second, whether the right of renewal was acquired by Lewis under the sheriff’s levy, sale and deed ? Third, whether the evidence given by defendant and which was objected to by plaintiff, touching Hague's notice of application for a renewal, was legal and competent ?
    “ The sheriff’s notice accompanying the deed is as follows : ‘ By virtue, &c., I have levied upon and seized the following-described real estate as the property of the said William Blaekmore, to-wit: the unexpired term of a lease for ten years, made October 25, 1847, to said Blaekmore by the board of President and Directors of the St. Louis Public Schools on the following described real estate, to-wit [describing the tract of six arpens as in the lease] ; said lease is recorded in book No. 4, page 254, of the records of St. Louis county, and is on the same property on which Blaekmore now lives, with brick house and appurtenances. And I will, on, &c., at, &c., sell at public vendue, for cash, to the highest bidder, all the right, title, interest, claim, estate and property of the above named William Blaekmore of, in and to the above described property, to satisfy said execution and costs.’ The sheriff’s deed recites the levy in the same words, with the same description and reference to the lease as above; states that, agreeably to said advertisement, he (the said sheriff) exposed to sale ‘ all the x-ight, title, claim, interest and property of the said William Blaekmore of, in and to the above described real estate, together with all the rights, privileges and appurtenances thereunto belonging;’ and the conveyance to Lewis, the purchaser, is in the same words above recited : ‘ of all the right, title, interest, claim, estate and property of the said William Blaekmore of, in and to the above mentioned and desci-ibed property that I might sell as sheriff as aforesaid by virtue of the aforesaid writs and advertisement.’
    “ The plaintiff asked the following instructions: ‘ 1. A declaration of a member of the board not produced as a witness, though now dead, that the application of defendant for a renewal had been received by the secretary, is not evidence that the board had received defendant’s application. 2. The privilege of renewing the lease did not pass by the sheriff’s sale to his vendee, and has never vested in the defendant according to the law of the case arising on the sheriff’s levy and advertisement and sale and other proceedings and the deed from the sheriff’s vendee to Hagne. 8. Unless the defendant applied to the schoolboard for a renewal of the lease three months prior to October 15, 1857, his right to such renewal is gone.’ The third instruction was given; the second was refused; and the first was modified by the court so as to read as follows : £ The delivery of an application for a renewal to a young man in the office of the board three months before October 15, 1857, who was not one of the board and who is not shown to have had any agency in its behalf, is not proof of a delivery to the board, though accompanied with instructions to deliver the application to the board, unless said application for a renewal was received by the board, or came to their knowledge three months before October 15, 1857.’ The plaintiff duly excepted to the refusal to give the first and second instructions, and to the modification by the court of the first instruction. The court also gave the following instruction at the instance of the defendant : ‘ The deeds from the sheriff to Lewis and from Lewis to Hagne, respectively, carried with them the covenant for renewal contained in the original lease from the board of Public Schools to Blackmore, dated in 1847.’
    “ The court rendered judgment for the defendant. Plaintiff in due time moved for a new trial, which being again overruled, he again excepted and appealed to this court.”

      R. S. Hart and Glover, for appellant.
    I. A covenant for perpetual renewal is not favored. (14 Kent, 199; 4 Bac. Abr. 890 U.) It is capable of severance from the land so as to abide with the lessee after a sale of the current term. The question whether there is such a severance depends upon the intention of the parties. (1 Smith L. Cas.; Spencer’s Case, -;• Comyn on Land. & Ten. 61, 157, 159; Smith, L. & Ten. 372; 1 Platt on Leases, 703; 2 Bac. Abr. 352.) The covenant of renewal is not referred to in the sheriff’s advertisement, as being the subject of his intended sale; it was neither levied on nor sold. (20 Ohio, 408 ; 2 Ohio, State, 44.) The rule caveat emptor applies in all its rigor to judicial sales. The privilege of renewal in this case was of more value than “ the unexpired term.” It was not alluded to in the advertisement. It did not pass to the purchaser. Hagne forfeited his privilege of renewal, even supposing it to have passed by the sale. The renewal to Blaekmore does not enure to Hagne, his application not being shown to have been made in time, the testimony relied on to prove it not being legal.

      Hamilton and II. N. Hart, for respondent.
    I. Covenants for perpetual renewal are valid when clearly expressed. (Brown v. Tighe, 2 Cl. & Ein. 416; Smith L. & Ten. 234; 1 Platt on Leases, 708; 4 Jarman Convey. 394; Furlong’s Land. & Ten. 245, 258 ; 4 Kent, 108 ; 1 Hil-liard on Real Pro. 227; Coote on L. & Ten. 228.) The right of renewal constitutes a part of the tenant’s interest in •the land, and the grant of the additional term for many purposes is considered as a continuation of the former, lease. Whoever takes the lease takes also the renewal. The benefit, running with the land, is transmitted to the assignee, whether he be such by the act of the party or by the law. Here the terms,.are express to the assignee. The renewal therefore necessarily passed to the person for the time being entitled to the lease. (12 East, 467; 1 Platt on Leases, 733 ; 2 id. 419; Furlong’s Land. & Ten. 533 ; 4 Bing., N. C. 780; Spencer’s case, 5 Co. 16; 4 Kent, 108 ; 4 Jarm. Conv. 425; Smith Land. & Ten. 147; 5 B. & A. 11; Anon. Moore, 159 ; 13 Ired. 194; 1 Dev.' & Bat. 94; 3 Mete. 85 ; 1 N. & McCord, 104 ; Woodfall, L. & T. 86 ; Coote, 230.) It was not in the power of the sheriff to sever the covenant from the interest conveyed, nor did he attempt it. His deed passed all the interest and estate of the lessee in the property described in the notice of sale. It is not necessary for the sheriff, in his deed assigning a term, to state the particular interest the party has; he may convey by general words. (Palmer’s Case, 4 Co. 74; 3 T. R. 292; Eaton v. Southby, Willis, 138 ; Watson on Sheriff, 128.) The word “term” means not only the limitation of time but the estate and interest also. (Co. Litt. 46 b.; Comyn on L. & T. 5 ; Burton on Real Prop. 124; Draper v. Bryson, 17 Mo. 84.) The evidence as to official acknowledgment of the deceased secretary was properly admitted in evidence.
   Richardson, Judge,

delivered the opinion of the court.

The numerous authorities cited by the defendant’s counsel establish in his favor the first two propositions presented in the statement. As the law discourages perpetuities, it does not favor covenants for continued renewals ; but, when they are clearly made, their binding obligation is recognized and will be enforced. The covenant for renewal is only an incident to the lease, and as it can not be passed without the principal, the conveyance of the principal by a proper description will necessarily carry the incident. They are inseparable, and a right of action can not exist in favor of a person claiming the benefit of the covenant without any right to the possession of the leasehold; but the covenant, being annexed to the estate, runs with it, and can not be retained by itself or assigned or severed so as to give an independent cause of action. A sale of the land under execution will pass to the purchaser all the covenants that run with it as effectually as if he had received a conveyance from the lessee; for as the purchaser, after he acquires possession, is bound to pay the rent and in that way assumes the burdens of the lease, he has the right to take advantage of the covenants that touch and concern the thing demised, which enhance the value of the estate.y

The parties agree that the application for renewal was in proper form, and, as the minutes of the board of directors show that the notice was before the board on the 11th of August, at the second meeting held after it had been left by Kurlbaum, we think his evidence was properly received. Notice left with a man about the office who had no authority to receive it of course would not bind the Public Schools, but, as the directors are not supposed to be all the time in session, it would seem that tlie secretary was the proper person with whom such applications should be left. It would be gross neglect in the defendant if'he had left the notice with a chance man about the.-office, and had not returned again to inquire whether it had been received; but the agent was told by the secretary a few days afterwards, and in ample time to have given another notice, that it had been received, and under such circumstances it would be a fraud on him to hold that he had lost his rights by his negligence. The parties have requested that the controversy between them shall be determined in this court in view of all the equities of the case, and, as the admission of the deceased secretary would certainly be competent in a proceeding by the defendant against the board of Public Schools to have specified performance of the covenant for renewal, we have less hesitation in deciding that the evidence was admissible in this suit. The other judges concurring, the judgment will be affirmed.


text:
    Bowlin, Plaintiff in Error, v. Furman, Defendant in Error.
    1. Under the act of incorporation of March 1, 1851, (Sess. Acts, 1851, p. 139,) the city of Carondelet had power to sell and dispose of its school lands,- the purchaser was under no obligation to see to the application of the purchase money. She might convey a portion of her school lands in exchange for and by way of compromise of an adverse claim to land embraced within her survey of common. Third persons could not dispute the validity of such an exchange on the ground that Carondelet had thereby committed a breach of its obligation to appropriate the school lands and their proceeds to the use of schools.
    2. A conveyance by Carondelet by quit-claim deed of a portion of its school lands is valid and operative although at the date thereof there was no survey or assignment by the United States for the use of schools; to sustain a conveyance made before such assignment it is not necessary to invoice the doctrine of the enurement of after acquired titles.

      Error to St. Louis Land Cowrt.

    This was an action in the nature of an action of ejectment to recover possession of four arpens of land, being a part of United States survey No. 124, in the common field of Caron-delet. The land embraced by said survey No. 124 was assigned to Carondelet for the support of schools November 14, 1853. The land afterwards embraced in said survey No. 124, being a tract of one by forty arpens, was on the 18th of November, 1851, conveyed by the city of Carondelet to Louisa Franklin and Constance Shultz, under whom plaintiff claims title. This conveyance on its face purported to have been made by way of compromise of a claim of said grantees, as the legal representatives of Gabriel Constant, to a tract of two hundred arpens in the common of Carondelet, which had previously been leased and disposed of by Carondelet for her benefit. Said deed was a quit-claim deed. The court gave the following instruction at the instance of the defendant: “1. Although the jury may find from the evidence that the premises in question are situated within the outboundary of the town of Carondelet shown by the survey and report of the surveyor general given in evidence, and although the said premises may have been set apart by said surveyor to the inhabitants of Carondelet for the support of schools, yet the ordinance of the city of Carondelet dated November 18, 1851, and the deed purporting to have been made by the city of Carondelet of the same date, and the deed of Franklin and wife and Shultz and wife read in evidence, are not sufficient to vest the legal title of said premises in the plaintiff; and the jury should find for the defendant.”
    The court refused the request of the plaintiff to instruct as follows: “ 1. If the jury believe from the evidence that the lot of ground sued for in this action is within United States survey No. 124, given in evidence by plaintiff, and that said lot of ground is included within the tract of land described in the deed of the city of Carondelet to Louisa Franklin and Constance Shultz, and also within that described in the deed of Franklin and Shultz and their wives to plaintiff, both given in evidence by plaintiff; that all the documents given in evidence by plaintiff are genuine, and that the tract of land surveyed as survey No. 124 is within the outboundary of the town of Carondelet given in evidence by plaintiff, then the plaintiff has established a perfect legal title to the premises in controversy; and, in order to defeat that title and prevent the plaintiff from recovering in this action, the defendant mnst have proved to the satisfaction of the jury, not only that the land sued for in this action, or some part of a larger tract of which it formed a part, was inhabited, cultivated and possessed prior to the 20th day of December, 1803, but must also show by whom it was cultivated prior to said time, and that such person or persons inhabited, cultivated or possessed the said lot, or the larger tract of which it formed a part, under some right, title or claim thereto in their own right, and that such right, title or claim continued in such person or persons and their legal representatives from the 20th day of December, 1803, to the time of the passage of the act of Congress of June 13, 1812. 2. If the jury believe from the evidence that the premises in controversy, or the tract of which it formed a part, was inhabited, cultivated or possessed by some one prior to the 20th day of December, 1803, but there is no evidence satisfactory to them of who that person was, then the jury are instructed that there is no sufficient evidence of any confirmation of the land in controversy under or by virtue of the act of the 12th of June, 1812, of the Congress of the United States.”
    The plaintiff took a nonsuit, with leave, &c.

      Shepley, Wright and Casselberry, for plaintiff in error.
    I. The city of Carondelet has full and absolute power of dominion and disposition of all property vested in the corporation. The power of disposition over the common and the school lands is entirely unrestrained. It is only of the proceeds of the one-tenth of the sales of the common and the whole of the sales of the school lands that a particular disposition is made, that it shall be held for the support of schools. Carondelet did not hold these lands strictly as trustee, but as absolute proprietor, clothed, to be sure, with the obligation to appropriate them or the proceeds to the support of schools. The exchange of lands was a sale within the meaning of the act. Even if the city holds as trustee, the purchaser is not bound to look to the proper application of the proceeds. The city conveyed its legal title to those under whom plaintiff claims. (Gales v. Manning, 20 Mo. 461.) It is no objection that the assignment to the schools was subsequent to the conveyance by Carondelet. The title of Carondelet was perfect at the time of the conveyance. The deed was sufficient to carry the land. (Kissell v. Public Schools, 18 How. 215 ; Landes v. Brant, 10 How. 348.) The question whether a subsequently acquired title enures under a quit-claim deed has no application to this case. Carondelet had title at the time of the conveyance.

      Krum Sf Harding, for defendant in error.
    1. The deed from Carondelet was a mere quit-claim. The subsequent assignment for the use of schools did not enure to the benefit of the grantees in the deed. (Bogy v. Shoab, 13 Mo. 365.) The deed from Carondelet to Franklin and Shultz was void. The city had no power to barter the school lands for the benefit and use of the corporation. No powers will be inferred to enable a trustee to violate his trust. The deed is void for fraud patent upon its face. The intention to convert the trust fund for the benefit of the trastee is apparent upon the face of the deed. Can the grantees in such a deed claim that they are not bound to see to the application of the proceeds of the sale, or even that they have acquired the legal title and hold themselves liable to account to the beneficiaries ?
   Scott, Judge,

delivered the opinion of the court.

This is an action of ejectment, and the pleadings present nothing but the dry point, whether there was authority in the city of Carondelet to make the conveyance of the land in dispute through which the plaintiff claims. The record does not raise the question whether those, under whom the defendant holds, had title, under the act of 13th June, 1812, by virtue of inhabitation, cultivation or possession prior to the 20th December, 1808.

The first clause of the second section of the eighth article of the act incorporating the city of Carondelet enacts, that the property in all lands granted, for the benefit of schools, to the inhabitants of the town or village of Carondelet by any act of the Congress of the United States, is hereby vested in the corporation created by this act. The following clauses do not seem to be designed to restrict the grant, but are only directions for the management of the property conferred by the act on the city. (Sess. Acts, 1851, p. 148.) An objection of the defendant is, that the conveyance made by the city was not a sale, but an exchange which it had no authority to make. By its charter, the city had authority to take all measures necessary to obtain possession of the school lands, whether by action at law or compromise with adverse parties. The school land exchanged was not in possession of the city ; it was in dispute, as this suit shows. The party with whom the exchange was made claimed a tract situated in the commons of Carondelet. The city, then, compromised a claim to a portion of her commons by conveying a lot of the school lands in satisfaction of it. The charter provided that one-tenth part of the proceeds of any sales of the common should be paid over to the school fund of said city and be applied to the use of schools therein. It may be said that the portion of the commons claimed had been leased and disposed of before the city was incorporated, so that there could be no sales in which the schools could have an interest. To this it may be answered that there was a power of granting in fee the lands leased, and the tenth part of the profits arising from this source may have been worth as much or more than the claim of the schools to the lot in controversy. This transaction, then, might be referred to the power to compromise as the source of the authority which gave a warrant to its existence. The act of Congress of Jan’y 27,1831, vested the legal title to the school lots reserved by the act of the 13th June, 1812, in the state, to be sold or disposed of or regulated for school purposes in such manner as might be directed by the legislature. The state granted the full property in these lands to the city of Oarondelet for the benefit of schools, with directions to compromise disputed titles and to make sales, applying the proceeds to the purposes of the grant. The power of establishing, regulating and supporting common schools was vested in the council,by the charter; so that the corporation was as well one for school purposes as for municipal regulation. Powers so extensive would sanction the exchange made between the city and the vendors of the plaintiff. Under the circumstances there was no duty [imposed] on the purchaser to see to the application of the purchase money or to inquire whether the trustee was guilty of a breach of trust. Had the city exchanged a portion of the school lands not suitable as a site for a school-house for a lot adapted to that purpose, the title would certainly have passed. We are not inquiring whether Oarondelet has been guilty of a breach of trust for which she may be liable; for such an hypothesis is not at all inconsistent with the idea that the power to pass the title existed. The legal title to the lot was beyond all controversy in the city; she was a trustee; and it can not be questioned that the deed of a trustee conveys a legal title. The trustee having a legal, though defeasible, title, that title becomes absolute in his vendee in a court of law. In a court of law, the vendee need not show that the conditions of the trust deed have been complied with. (Gale v. Mensing, 20 Mo. 461; Taylor v. King, 6 Munf. 366.) Although there is now no distinction between courts of law and equity, yet if a party under the present system will file a petition which formerly only entitled him to a legal remedy, he can not now under such a petition have any other than the remedy he formerly had. If he would have equitable relief, he must set out in his pleading the facts which give him title to it. The pleadings in the present action are only designed to try the mere legal title, and therefore that is the only matter we are called upon to decide, and we accordingly speak of it as an action at law.

Another argument of the defendant is, that the deed is void for fraud patent upon the face of it, because it shows that a trustee is attempting to convert a trust estate to his own use and declares his intention upon the face of the deed ; and he further maintains that the grantees in the deed are bound to see to the application of the purchase money and to hold themselves liable to account to the beneficiaries. This argument proceeds certainly on the ground that the title passed from the city to her alienees. No fraud by way of breach of trust and confidence can have been committed by the city unless she has passed away the title granted to her by the general assembly. If no title has passed, the beneficiaries of the trust are not injured. But if there is a breach of trust and a fraud has been committed, then the title must have passed; and if a title has passed, it is obvious that the plaintiff must recover in this action, as the right to thg strict legal title is the only matter in issue by the pleadings. If the city has been guilty of a breach of confidence in conveying away a trust estate; if the plaintiff has been guilty of a fraud in accepting a title under it, that is a matter not to be determined in this suit, nor in a suit to which the defendant is a party. If Carondelet has betrayed and defrauded those who confided in her, that is no concern of the defendant. Let those complain who are injured. A deed may be fraudulent and void, but it is not for strangers to complain of it. A deed that is fraudulent can only be avoided by those who are injuriously affected by it. If a breach of trust has been committed in aliening this land, the defendant is no more affected by it than any other member of the community.

It was insisted by the defendant that the deed under which the plaintiff claims was executed before the school lands therein described and attempted to be conveyed were assigned and set apart for the use of schools, consequently there was no title in Carondelet at the date of the deed, and therefore none could pass by the deed of the vendors of the plaintiff. In the case of Kissell v. The Public Schools, 18 How. 215, the supreme court of the United States expressed the opinion that the school lands were in the condition of Spanish claims after confirmation, without having established and conclusive boundaries made by public authority, and which claims depended for their specific identity on surveys to be executed by the government. If the school lands were in the condition of confirmed Spanish grants before a survey, surely no question can arise as to the right to dispose of them, and that a disposition of them in that state would carry any title the government would afterwards- pass. The deed would convey the land, and the subsequent designation, like the survey of a confirmed grant, would point out the land designated. The doctrine of the enurement of a title acquired after the making of a conveyance is not applicable to the circumstances of this case.

Eeversed and remanded;

the other judges concur.


text:
    Gutzweiler, Respondent, v. Lachman et al., Appellants.
    1. Where property is designed for the benefit of creditors, and a sale is made by the trustee under such assignment, the fact, that a purchaser at such sale purchases the property for the benefit of the grantor in the deed of trust and with a view to permit him to enjoy the benefit of it, will not render the transaction void as to creditors; nor would it be rendered void by the fact that the purchase was made with the understanding that the grantor should have the privilege of redeeming on payment of the sum advanced. It would be otherwise if the purchase had been made with money furnished by the grantor in the deed of trust.
    2. In an action of ejectment for the recovery of leasehold premises, the plaintiff can not recover by way of damages the rents and profits beyond the time of the expiration of his title.

      Appeal from Si. Louis Land Court.

    This cause has heretofore been before the supreme court. (See Gutzweiler v. Lachman, 23 Mo. 168.) It was an action in the nature of an action of ejectment, commenced September 16,1854, to recover possession of certain leasehold premises in the city of St. Louis. Plaintiff claimed title by virtue of a deed of conveyance dated May 17, 1853, executed by one Thomas J. Meier as trustee for one John T. Schultze. The defendant Garesché, who defended as the landlord of the other defendants, claimed title by virtue of a sale on execution under a judgment, dated April 22, 1852, against the said John T. Schultze and one Henry Mauck, and a deed from the sheriff, dated September 29, 1853 ; and also set up that the deed of trust to Meier and the deed of Meier to plaintiff were void as to the creditors of Schultze. The lease to Schultze was for ten years from September 1,1845. The lessor agreed to pay to the lessee the value of the improvements at the expiration of the term, or to renew the lease at the option of the lessee. There was evidence tending to show that plaintiff purchased the property at'the trustee’s sale for the benefit of Schultze.
    The court gave the following instruction at the instance of the plantiff: “ 1. If the j'ury shall believe from the evidence that the property in dispute was purchased at the trustee’s sale by the plaintiff for his own individual account, and that the money which was paid for the same was the 'money of the plaintiff, then they ought to find for the plaintiff.” The court, of its own motion, instructed the jury as follows: “ 2. If the jury find for the plaintiff, they will assess the amount of the damages the plaintiff has suffered, and the measure of damages is the value of the rents and profits of the premises sued for during all the time the defendants have held the possession against the plaintiff to this day ; and the jury will find in addition and separately the monthly value of the rents and profits of the premises. 8. The deed from Meier (the trustee) to the plaintiff being fair and regular on its face, it devolves on the defendants, who attack it, to establish by evidence satisfactory to the jury, cither that the plaintiff (Gutzweiler) bought the property for the use and benefit of Schultze, or that the purchase money or part of it was paid out of the means of Schultze; and unless the jury are satisfied that the defendants have established one or more of these facts, the deed must stand and the defendants must fail in their defence.” The court refused the following instructions asked by defendants: “ 1. If the jury believe from the evidence that the property was bought by Gutzweiler, the plaintiff, with his own means, but with the understanding with Schultze that it was to be repaid to him by Schultze, then the property was bought for Schultze by Gutzweiler, and the jury must find for the defendants. 2. If the jury believe from the evidence in the cause that Gutzweiler purchased the property in dispute at the sale made by Meier, the trustee, for the benefit and use of Schultze, the plaintiff is not entitled to recover. 3. If the purchase money bid by Gutzweiler at the sale by Meier as trustee, or any part thereof, was paid by Schultze or with his means, the plaintiff can not recover.”
    The jury found for plaintiff and assessed his damages at the sum of $2,808, and fixed the monthly value at fifty dollars. A motion for a new trial and affidavits were filed in support thereof. It is deemed unnecessary to set them forth. They were filed with a view to show that defendants had been surprised by the verdict for damages.

      S. T. Sf A. £>. Glover, for appellants.
    I. The plaintiff showed no legal title at the time of the trial. The lease, supposing plaintiff’s right to it was not void, had expired September 1, 1855. The court erred in refusing the instructions asked by defendants. The property was evidently bought by Gutzweiler with Schultze’s means. The court instructed the jury erroneously. The instruction as to the measure of damages was erroneous. No allowance was to be made for taxes, insurance, repairs and other charges imposed upon the lessee. The damages were excessive ; they were obtained by a surprise. The affidavits show this. Damages should not be computed against defendants after the expiration of the lease.

      H. iV. Hart, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover possession of leasehold premises. The fact that the plaintiff purchased the property intending that Schultze should have it, would not make the sale void as to Schultze’s creditors. One has a right to purchase the property of another and hold it for his benefit or permit him to enjoy the benefit of it. Such conduct can in nowise prejudice creditors; nor is the case altered by purchasing with the understanding that the debtor shall have the privilege of redeeming on payment of the sum advanced. Such a transaction would at most amount to a mortgage, and the creditors would not be allowed to come in but upon first satisfying it. We see no error in the giving or refusing instructions on these points. No doubt if the money, with which the plaintiff purchased the property, was furnished by Schultze, his right to a recovery, upon the proper establishment of that fact, would be taken away.

We are of the opinion that there was error in the instruction given as to the measure of the damages. The jury were instructed that the measure of damages was the value of the rents and profits of the premises sued for during all the time the defendants have held the possession against the plaintiff to this day. Now the lease in evidence showed that it had expired before the trial. The statute says, if the plaintiff prevail in the action, he shall recover damages for all waste and injury, and by way of damages the rents and profits down to the time of assessing the same, or to the time of the expiration of the plaintiff’s title. On the evidence in the case, this instruction was clearly erroneous. Even on the instruction as given, the damages were excessive, the annual rent of the premises being seven hundred dollars and the lease showing that from this sum deductions were to be made.

The affidavits accompanying the motion for new trial showed a very hard case against the defendant G-aresché, who in this whole matter manifested that he was willing to do wbat was right. But we do not deem it necessary to go into these matters as the judgment will be reversed on the other ground. The affidavits clearly showed that the damages as against Garesclié were excessive, for it is not seen how he was made responsible for them after the expiration of the lease.

Reversed and remanded;

the other judges concurring.