Scott, Judge,
delivered the opinion of the court.
The main point in the argument for appellants was founded in the conception, that the deed which has given rise, to this [22]*22controversy was similar as to the estate or interest conveyed by it to that conveyed by the indenture in the case of Say v. Smith, Plowden, 271. It is only necessary to look at that case in order to be satisfied that this is a misconception. In the case cited, the lease is only for the term of ten years fully to be complete. The lessee agreed at the end of the said term, to pay ten thousand tiles, or the value thereof in money; and it was further agreed, that if the ten thousand tiles should be punctually paid at the end of every ten years, the lessee should have a perpetual demise. In that case, the judges take the distinction between a conditional lease and condition to have a lease, and in that distinction consists the difference between the case under consideration and of Say v. Smith.
We do not deem it necessary to enter into any discussion as to the proper name of the instrument executed by the authorities of the city of St. Louis to N. B. Atwood, under whom the appellants claim. The instrument was effectual to convey away all the interest the city had in the premises in dispute, and a compliance with its terms on the part of the lessee and his assigns, would have effectually barred all right the city might have had in the lot. It is true, there were conditions annexed in the instrument on the performance of which the lessee or his assigns would have been entitled to an estate in fee. But these conditions constituted no separate and distinct estate ; they were mere incidents to the lease or sale, and would naturally terminate with ic. Any act which avoided or annulled the lease would destroy all conditions annexed to it.
How, then, does this case stand? The instrument under which the appellants claim, purports to have been made in compliance with the ninth section of the act of the general assembly, entitled “ An act to authorize the sale of the St. Louis commons,” approved March 18, 1835. This instrument is a substantial compliance with the act. It is, in effect, a perpetual lease, with a privilege in the lessee to convert it into an estate in fee, by complying with the conditions contained in the instrument of lease. There is also a clause in the deed by [23]*23which the mayor and aldermen of the city are authorized to annul the sale upon the non-payment of interest on the purchase money as stipulated. This clause is inserted in virtue of an express provision in the act of assembly empowering the city to sell her commons. Now, admitting this Avas strictly a lease, there is an error in supposing that the city could only enforce a forfeiture of it by the course of the common law. The city, in leasing her commons, did not act of her mere volition as an individual proprietor would in leasing lands belonging to him. She acted under a law of the state, and that law expressly empowered her to enforce the performance of the conditions of the lease by means of a forfeiture. The case is as though the general assembly had declared that the lease should be forfeited in the event of non-payment of the interest on the purchase money. There is a marked difference betAveen a forfeiture imposed by a statute and one arising under the contract of the parties. The legislature can impose it as a punishment, whilst individuals can only make it a matter of contract. In the one case it can not be relieved against, in the other it may. In the one case it may be taken advantage of in the manner prescribed by the law imposing it, in the other only according to the course of the common law. (How. 3 U. S. Rep. 534.)
The right to enforce a forfeiture or annulment of the lease being conferred by an act of the general assembly, Avhich can not be relieved against, it remains to be inquired into, Avhether the appropriate steps Avere taken by the city authorities to carry it into effect. Whilst courts will not incline to forfeitures, yet when a right to exact forfeiture is given, they should not withhold a reasonable construction from the written instruments by which they are designed to be enforced. Taken'in connection with the facts, it is impossible to place any other interpretation on ordinance 766 than that which will make it effectual for the purpose for which it was intended. The objections to the ordinance are verbal. There is no force in them. No one can read the ordinance in connection with the deed or conveyance and entertain any doubt as to its meaning. The right reserved [24]*24in the deed is to annul the sale. The ordinance declares it forfeited, for the non-performance of the very act, for the nonperformance of which it may be annulled. It is not pretended that there was more than one deed or conveyance between the parties respecting this lot. “ Annul” is not a technical word. There is nothing which prevents the idea conveyed by it from being expressed in equivalent words. The annuling of a lease is nothing more in effect than causing a forfeiture of it. The recital in the preamble to the ordinance, that the right of forfeiture is reserved to the city, can not affect its validity. It means nothing more than that the right of forfeiture' is reserved for the benefit of the city. Besides, if this was an error, it could produce no harm. If the right of forfeiture was enforced by the authority empowered to do it, a mis-recital of the authority to whom it was reserved could work no wrong. There are several other criticisms on the language of the ordinance which we do not deem it necessary to notice.
The view we have taken of ordinance 766 relieves us of the necessity of saying any thing in relation to ordinance 2826, not intending thereby to detract any thing from the weight to which it is entitled.
The change of the name of a corporation does not affect its. rights. In its new name, a corporation may proceed to enforce rights acquired under a former name, and the same remedy is open to those who had claims upon it before the change. A corporation which has been suspended by the loss of the governing members may be revived by a name different from that by which it ivas formerly known, still preserving its identity and ancient lights. (Willock, 36.)
The act of 18th March, 1835, under which the sale or lease was made, took effect on the 1st December, 1835. On the 26th February, 1835, an act was passed conferring a new charter on the city by the name and style of the “ mayor, aldermen and citizens of the city of St. Louis.” This act, too, it would seem, took effect on the first December, 1835. The name of the incorporation given by this act is the same by which the [25]*25city stood incorporated before its passage. By an act approved February 8th, 1889, the city received a charter by which she Was incorporated under the name and style of “ the city of St. Louis.” This act changed the former charters and vested the legislative power in a city council, consisting of a board of aldermen and a board of delegates. Ordinance 766 was passed under this last charter, and it purports to have been passed by the city council. Now, it is maintained that, inasmuch as the deed requires that the act of annulment should be made by the mayor and aldermen, the ordinance or resolution made by the city council, declaring a forfeiture, is ineffectual for that purpose. The act under which the commons were sold or leased, directed that the deed should contain a condition to the effect that if the interest on the purchase money remained unpaid for six months, the board
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Scott, Judge,
delivered the opinion of the court.
The main point in the argument for appellants was founded in the conception, that the deed which has given rise, to this [22]*22controversy was similar as to the estate or interest conveyed by it to that conveyed by the indenture in the case of Say v. Smith, Plowden, 271. It is only necessary to look at that case in order to be satisfied that this is a misconception. In the case cited, the lease is only for the term of ten years fully to be complete. The lessee agreed at the end of the said term, to pay ten thousand tiles, or the value thereof in money; and it was further agreed, that if the ten thousand tiles should be punctually paid at the end of every ten years, the lessee should have a perpetual demise. In that case, the judges take the distinction between a conditional lease and condition to have a lease, and in that distinction consists the difference between the case under consideration and of Say v. Smith.
We do not deem it necessary to enter into any discussion as to the proper name of the instrument executed by the authorities of the city of St. Louis to N. B. Atwood, under whom the appellants claim. The instrument was effectual to convey away all the interest the city had in the premises in dispute, and a compliance with its terms on the part of the lessee and his assigns, would have effectually barred all right the city might have had in the lot. It is true, there were conditions annexed in the instrument on the performance of which the lessee or his assigns would have been entitled to an estate in fee. But these conditions constituted no separate and distinct estate ; they were mere incidents to the lease or sale, and would naturally terminate with ic. Any act which avoided or annulled the lease would destroy all conditions annexed to it.
How, then, does this case stand? The instrument under which the appellants claim, purports to have been made in compliance with the ninth section of the act of the general assembly, entitled “ An act to authorize the sale of the St. Louis commons,” approved March 18, 1835. This instrument is a substantial compliance with the act. It is, in effect, a perpetual lease, with a privilege in the lessee to convert it into an estate in fee, by complying with the conditions contained in the instrument of lease. There is also a clause in the deed by [23]*23which the mayor and aldermen of the city are authorized to annul the sale upon the non-payment of interest on the purchase money as stipulated. This clause is inserted in virtue of an express provision in the act of assembly empowering the city to sell her commons. Now, admitting this Avas strictly a lease, there is an error in supposing that the city could only enforce a forfeiture of it by the course of the common law. The city, in leasing her commons, did not act of her mere volition as an individual proprietor would in leasing lands belonging to him. She acted under a law of the state, and that law expressly empowered her to enforce the performance of the conditions of the lease by means of a forfeiture. The case is as though the general assembly had declared that the lease should be forfeited in the event of non-payment of the interest on the purchase money. There is a marked difference betAveen a forfeiture imposed by a statute and one arising under the contract of the parties. The legislature can impose it as a punishment, whilst individuals can only make it a matter of contract. In the one case it can not be relieved against, in the other it may. In the one case it may be taken advantage of in the manner prescribed by the law imposing it, in the other only according to the course of the common law. (How. 3 U. S. Rep. 534.)
The right to enforce a forfeiture or annulment of the lease being conferred by an act of the general assembly, Avhich can not be relieved against, it remains to be inquired into, Avhether the appropriate steps Avere taken by the city authorities to carry it into effect. Whilst courts will not incline to forfeitures, yet when a right to exact forfeiture is given, they should not withhold a reasonable construction from the written instruments by which they are designed to be enforced. Taken'in connection with the facts, it is impossible to place any other interpretation on ordinance 766 than that which will make it effectual for the purpose for which it was intended. The objections to the ordinance are verbal. There is no force in them. No one can read the ordinance in connection with the deed or conveyance and entertain any doubt as to its meaning. The right reserved [24]*24in the deed is to annul the sale. The ordinance declares it forfeited, for the non-performance of the very act, for the nonperformance of which it may be annulled. It is not pretended that there was more than one deed or conveyance between the parties respecting this lot. “ Annul” is not a technical word. There is nothing which prevents the idea conveyed by it from being expressed in equivalent words. The annuling of a lease is nothing more in effect than causing a forfeiture of it. The recital in the preamble to the ordinance, that the right of forfeiture is reserved to the city, can not affect its validity. It means nothing more than that the right of forfeiture' is reserved for the benefit of the city. Besides, if this was an error, it could produce no harm. If the right of forfeiture was enforced by the authority empowered to do it, a mis-recital of the authority to whom it was reserved could work no wrong. There are several other criticisms on the language of the ordinance which we do not deem it necessary to notice.
The view we have taken of ordinance 766 relieves us of the necessity of saying any thing in relation to ordinance 2826, not intending thereby to detract any thing from the weight to which it is entitled.
The change of the name of a corporation does not affect its. rights. In its new name, a corporation may proceed to enforce rights acquired under a former name, and the same remedy is open to those who had claims upon it before the change. A corporation which has been suspended by the loss of the governing members may be revived by a name different from that by which it ivas formerly known, still preserving its identity and ancient lights. (Willock, 36.)
The act of 18th March, 1835, under which the sale or lease was made, took effect on the 1st December, 1835. On the 26th February, 1835, an act was passed conferring a new charter on the city by the name and style of the “ mayor, aldermen and citizens of the city of St. Louis.” This act, too, it would seem, took effect on the first December, 1835. The name of the incorporation given by this act is the same by which the [25]*25city stood incorporated before its passage. By an act approved February 8th, 1889, the city received a charter by which she Was incorporated under the name and style of “ the city of St. Louis.” This act changed the former charters and vested the legislative power in a city council, consisting of a board of aldermen and a board of delegates. Ordinance 766 was passed under this last charter, and it purports to have been passed by the city council. Now, it is maintained that, inasmuch as the deed requires that the act of annulment should be made by the mayor and aldermen, the ordinance or resolution made by the city council, declaring a forfeiture, is ineffectual for that purpose. The act under which the commons were sold or leased, directed that the deed should contain a condition to the effect that if the interest on the purchase money remained unpaid for six months, the board might, by resolution to be entered of record on the minutes of their proceedings, annul the sale of any lot which was delinquent. This is the act. Its meaning and purpose are obvious. That meaning was not changed by transferring the words of the law into the contract. The idea intended was that the body in which the legislative power of the city resided should annul the sale. It never was contemplated that the organization of the legislative power of the corporation should forever remain unchanged, in order that advantage might be taken of the condition. Suppose that after all legislative power had been taken by charter from the board and vested in another body, and the charter had provided that two men should be a board of aldermen, with no legislative powers or duties whatever, would the annulment of the sale by such a hoard be within the spirit or meaning of the condition ? The concurrence of the mayor in the act, if it were conceded that his consent was not required, can not prejudice the vendee or lessee. ■ As his action is separate and independent of the board, the requiring of his concurrence is an advantage to the vendee of which he can not complain. To obtain the joint concurrence of two separate bodies to an act, is more difficult than to obtain the consent of one of those bodies ; besides, if the resolution, [26]*26without his approval, was sufficient, the putting his signature to it could not affect its validity.
What has been said in relation to the change of names of corporations, is an answer to the objection that, in the new charter of 1839, under which ordinance 766 was passed, there was no reservation of the power to annul the sales made by the mayor'and aldermen. In addition to this, the seventh and eighth sections of the seventh article of the charter of 1839 are sufficient to preserve all rights belonging to the city under former charters.
Another point made by the appellants was, that the annulment of the sale to Atwood did not revest a fee simple in the lot in the city of St. Louis ; that such an effect could not be produced unless the city had been the owner before the annulment. The case of Swartz v. Page, (13 Mo. 610,) certainly goes on the idea that the city had power to convey a fee simple title to the commons. In the case of DuBois v. Bramell, (4 How. U. S. Rep. 458,) the court says : “ In January, 1831, the city of St. Louis and other towns applied to have their rights of common further confirmed and regulated, and an act of congress was passed declaring that the United States do hereby relinquish to the inhabitants of the several towns of St. Louis, &c., all right, title and interest in and to the town or village lots, out-lots, common-field lots and commons, to be held by the inhabitants of the said towns in ‘ full property,’ and to be regulated or disposed of for the use of the inhabitants according to the laws of the state of Missouri. This law vested in the city corporation the town common in fee simple, and gave full power to the legislature of Missouri to incorporate it into the city by extending the city charter over it.” The right of congress to pass any law affecting the right to commons, after the act of 1812, has been questioned ;'but this exercise of power has its foundation, it is presumed, in the nature of commons. The right to commons in the inhabitants was not inconsistent with the idea of a fee in the sovereignty under which they existed. The words “ in full property,” in [27]*27the act above cited, seem to show that such was the opinion entertained by its authors. The act of 18th March, 1835, was passed in pursuance to this act of congress by the legislature of Missouri, to enable the city to dispose of her commons.
There was an admission in the answer that the lot was cultivated, and that one. of the defendants lived upon it. Under these circumstances, the amount of the damages was exclusively for the jury.
Judgment affirmed,
the other judges concurring.