City of St. Louis v. Nelson

108 Mo. App. 210 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts). — 1. The aggregate amount deposited by the city in court was $2,978.90 as stated, of which the iron works asserted right to but $2,070.40, leaving the ownership of appellant to the remainder uncontroverted and undisputed and by necessary implication conceded. Under these conditions, when respondent’s claim was advanced, had appellant immediately asked the court to order payment to him of this difference, to which respondent never laid claim, such prayer might justly have been granted and such order would doubtless have been then made. The right of appellant to this balance was not disturbed by the deliberation with which he applied to the court for its possession, nor were the rights of the respective claimants to the contested fund connected with or affected by its delivery on the day of this appeal to appellant. The amount thus paid over to appellant was in no sense the fruits of this controversy, but mere the collection by the lawful owner of a sum of money, theretofore in hands of the clerk in which respondent asserted no interest and to which it had no right, as respondent itself, by its own conduct, acknowledged. If the payment accepted had been part of the subject of this litigation between appellant and respondent, his authority to prosecute this appeal thereafter might justly be disputed, but appellant should not be barred of his right of review of the ruling of the trial court upon the ownership of the fund in dispute, by his acceptance of a sum to which his right of possession and ownership had never been challenged. As declared by this court heretofore, “An acceptance of payment of a money judgment is a full and complete discharge of the 'unsuccessful party, against whom the judgment was rendered; from all claims which were litigated,” etc. Noah v. Ins. Co., 78 Mo. App. 370. The appellant had as clear title to the sum not involved in this dispute, as he would have had to a sum paid into court for another parcel of realty damaged by the same municipal improvement, had he been possessed of such other impaired realty. The cases relied on by respondent to uphold a different conclusion are to be distinguished as involving a state of facts, where payment of part of the judgment sought to be reviewed on appeal . had been received and accepted.

2. The buildings on the lot of appellant having been erected by lessee pending the term of the first lease, the lessee enjoyed the right of their removal at its expiration of all such improvements, provided' punctual payment had been made of the rent reserved and all taxes assessed against premises, a condition with which the lessee had not complied, and this conditional right therefore was not in force in the years 1891 and 1892, when the change of grade was made and the statutory proceeding inaugurated. The rights of appellant to the premises in question were then and now determined by the second lease executed in October, 1892, pending this proceeding though bearing date prior to its institution, and by the provisions of this lease then operative the right of removal of existing improvements on the demised premises was not conferred on or secured by the lessee, but the right of removal was expressly confined and restricted to improvements erected during its term subject to the condition of prompt performance of the stipulations of the lease respecting rental and taxes. The acceptance of the new lease was equivalent to a surrender of the possession to the landlord, and the re-entry under the new in lieu of the old tenancy, and appellant thereupon was in possession of the demised premises by virtue of such new agreement of tenancy and former rights, as well unqualified as contingent, under the prior and expired lease were effectually extinguished and abandoned. A lessee’s right of removal of improvements attends the life of the lease creating such right and does not survive but expires with it, and under a new contract of lease where such right is not reserved it can not subsist. Exchange, etc., Co. v. Schuchmann, etc., Co., 103 Mo. App. 24; Loughran v. Ross, 45 N. Y. 792.

3. Respondent does not contend that it has been put to the expense of making the changes, nor that it has made such changes in the building as detailed by the commissioner, for the foundation of the allowance by the board of commissioners for the aggregate in controversy, nor does any legal obligation appear on its part to pay such expense; in the absence of ambiguity patent on the face of the judgment of March 9,1903, upon the report of the commissioners, it may be questioned whether such testimony was competent in any aspect, but the items described, if such alternations and costs have become essential, are imposed on appellant as owner of such abutting premises, and constitute damages suffered by him not by respondent, his parol tenant. The respondent is not the owner of the improvements, which with the lot on which they stand, are the property of appellant.

The judgment is reversed with directions to enter •order awarding payment of the sum in controversy to appellant herein.

All concur.