98 Mo. 613 | Mo. | 1889
— This is an action of ejectment prosecuted by the city of St. Louis to recover a parcel of land, the same being a part of the north wharf. The answer is a general denial, res judicata and estoppel in pais.
The plaintiff put in evidence a deed signed by Mary A. Pendleton and some forty other persons, as parties of the first part, to the city of St. Louis, as party of the second part. It bears date in January, 1853, and was recorded in 1.854. The grantors were owners in severalty of various parcels of land on the west bank of the Mississippi river, and by the deed they conveyed to the city, for the purpose of a wharf, the property owned by them east of a designated line. The deed contains various conditions and covenants, some of which are to be performed by the city before it takes effect, and others are to be thereafter performed, and they contemplate a large expenditure of money on the part of the city in the improvement of the wharf. It is the same instrument which was before this court in St. Louis v. Wiggins Ferry Co., 88 Mo. 615. The other evidence for the plaintiff, the bill of exceptions states, tends to show that the city had complied with the terms and conditions of the deed.
The evidence for the defendant shows that in 1872, Mary A. Pendleton sued the city of St. Louis in ejectment to recover the parcel of land now in question. The
The court refused all of the instructions asked by the defendant, and, in effect ruled, that all of this evidence offered by it constituted no defense.
1. The judgment in the former suit is not a bar to the prosecution of the present one. The repeated rulings of this court are that a judgment in an ejectment suit is no bar to a second action between the same parties for the same property, and this is true whether the titles and defenses are the same or not. Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493 ; Avery v. Fitzgerald, 94 Mo. 207. We do not overlook the arguments in favor of a contrary ruling ; but it must be remembered that, in 1855, the legislature, by an amendment to the statute concerning ejectment suits, made a judgment in such cases, except of non-suits, a bar to any other suit between the same parties, or those claiming under them, as to the same subject-matter. 1 E. S. 1855, p. 695, sec.
2. Under our practice act the defendant in an ejectment suit is not bound to first try his title at law, and, if defeated, then file his petition in equity to enjoin execution. He may set up his equities as a separate defense in the ejectment suit, and have equitable relief, if entitled thereto. If he does make such a defense, then the judgment thereon is final and conclusive, unless reversed ón appeal or writ of error. All this is the effect of the rulings in Chouteau v. Gibson, 76 Mo. 38, and Preston v. Rickets, 91 Mo. 320. These cases are in accord with those before cited.'
3. The claim of an estoppel in pais is equally untenable. The former judgment in favor of Mary A. Pendleton was rendered in 1877, and in 1881 the city commenced this suit to regain possession. In the meantime Pendleton sold the property to the grantors of the present defendant. These grantors supposed the former judgment was conclusive, but that was a mere mistake of the law on their part. It does not appear that the city in any way induced the defendant or its grantors to buy. the property, nor does it appear that the city, by its proper officers, had any knowledge of the proposed purchase. The first element of an estoppel by conduct is, that there must have been a false representation or a concealment of material facts. Bigelow on Estoppel
The judgment is, therefore, affirmed.