Priest v. City of St. Louis

103 Mo. 657

• Court: Supreme Court of Missouri
• Decided: October 15, 1890
• Status: Published

Opinion

Macfarlane, J.

Ejectment to recover possession of certain lots in the city of St. Louis. Answer, a general denial. The city of St. Louis was the common source of title. Plaintiff introduced in evidence a deed from the city to himself, and one John J. Anderson dated the fourth day of October, 1859. Defendant then introduced a deed from Priest and Anderson conveying the lots to Stephen IToyt, comptroller of the city of St. Louis, in trust to secure to the city the payment of certain notes therein described, with power in the trustee to sell the lots in default of payment of the notes. The evidence shows that a sale Avas made under the power contained in the deed of trust on the fifteenth day of December, 1864. This sale was void on account of noncompliance Avith the terms of the power. After this supposed sale had been made the city delivered to plaintiff and Anderson their notes and deed of trust. The notes when returned were canceled by the following indorsement : “ Canceled by sale December 15, 1864. Geo. K. Budd, Comptroller.”

The evidence shows that the lots were vacant and unimproved at.and from the sale in 1859, until about January, 1880, when defendant fenced them in, and has continued in the actual possession ever since. The trustee’s sale was declared void by this court in April, 1886. This suit was commenced in May, 1886. Prom 1865, the property was listed by the assessor as being the property of the defendant, the city of St. Louis. It does not appear from the abstracts of record that any instructions were either given or refused; in fact the abstract fails to show in whose favor the judgment was rendered, or that any motion for a new trial was ever filed, or that any exceptions were saved to any rulings of the court. We will infer from the fact that plaintiff is marked as appellant, that the judgment of the trial court was for defendant. We will also assume that the court rendered judgment upon the facts hereinbefore stated ; that a motion for a new trial was filed and overruled, and bill, of exceptions was duly filed making a record of the action of the court in overruling the motion.

The case of The City of St. Louis v. Priest, ante, p. 652, was submitted with this upon the same evidence. In that case it was held that the foreclosure of the deed of trust from Priest and Anderson was not barred by the statutes of limitations; that Priest and Anderson had never held the possession' of the lots adversely to the city, and that the cancellation of the notes by the city did not release the mortgage or prevent a foreclosure.

The only question for determination in this case, which was not passed on in the other, is, whether defendant’s possession under the void trustee’s sale, the deed of trust being still'in force, is a defense to this action. To this question an affirmative answer must be given, under the following authorities: Jackson v. McGruder, 51 Mo. 59; McCormick v. Fitzmorris, 39 Mo. 34; Johnson v. Houston, 47 Mo. 227; Howard v. Thornton, 50 Mo. 291.

Judgment affirmed.

All the judges of this division concur.