Hammerslough v. City of Kansas

57 Mo. 219

• Court: Supreme Court of Missouri
• Decided: July 15, 1874
• Status: Published

Opinion

NaptoN, Judge,

delivered the opinion of the court.

The plaintiff brought an action in the Common Pleas Court of Kansas City, to enjoin the city from using a lot of plaintiffs as a street until it was paid for. The petition was filed in 1869. It alleges that in 1867, the plaintiffs owned lot No 4 in Krey’s sub-division and had possession, when the city passed an ordinance condemning the lot as a street; that the city in 1869 was preparing the lot as a public highway without consent of the plaintiffs, and without paying any damages.

The answer sets up an agreement with the city authorities to convey the lot to the city for $75 per foot front, with interest at 10 per cent, from Sept. 1867, and avers, that the city has ever been ready and is now willing to pay this for the lot and tendering the amount due for the lot, that the city has improved the lot and prays that the plaintiffs convey.

At the hearing it was admitted that the plaintiffs agreed with the city Mayor to sell the lot for $75 per foot and 10 per cent, interest .from date of agreement, but the money was not paid.

The city commenced work on the lot in 1869. The finding of the court was, that the city did not pay for the lot, and therefore grants a perpetual injunction.

The remedy of the plaintiffs, if they claim the sale to the city as void, was an action of ejectment, and if they admitted the sale, they could sue for the purchase money. We see no grounds for an injunction. The plaintiffs are willing to accept a judgment for the purchase money and interest, and undoubtedly they are entitled' to this, but the court has no power to give sucha judgment.

The judgment is therefore reversed and the cause remanded.