139 Mo. 360 | Mo. | 1897
This is an action in ejectment to recover possession of a piece of land in St. Louis. The petition is in the ordinary statutory form. The answer is a general denial. When the ease came to trial it was submitted upon a so-called “agreed statement of facts,” in lieu of other testimony. It appears from that statement that plaintiff asserts his title through a sale of the land under a deed of trust executed by the principal defendant. The only substantial question in the litigation is whether or not the notice under the deed of trust was published in a “neivspaperN The other requirements of the deed of trust are admitted to have been fully met in making the trustee’s sale to plaintiff. Counsel for defendants, appellants, states the gist of the dispute in these words:
“As appears in the record and the statement of facts, the only point in controversy is that contended for by the appellants, to wit: that the sale was not advertised ‘in some newspaper printed in the English language in the city of St. Louis,’ within the meaning of said deed of trust, and of the statutes of Missouri governing trustees’ sales.”
The agreed statement recites that the notice was duly published in the St. Louis Daily Record. But the defendants contend that that publication is not a newspaper within the meaning of the law- and of the deed of trust. The description of the paper, given in the “statement,” is as follows: The St. Louis Daily Record “is printed and published in the English language in the city of St. Louis, Missouri, every day except
“It contains daily what is claimed to be a complete list of all conveyances of real estate within the city of St. Louis, and all deeds of trust, releases of deeds of trust, chattel mortgages, permits issued for improvements upon real estate, mechanics’ liens, judgments and transcripts affecting real estate, which occurred the day previous to the publication; notices of all real estate to be sold by trustees under powers contained in deeds of trust; notices of sales of real estate by administrators, executors, commissioners, or by other judicial process, both in the city of St. Louis and in St. Louis county. It contains a brief minute of the proceedings of the circuit court of the city of St. Louis; brief notices of all suits filed in said court, and the setting of such cases for trial.
“It also contains quotations of all principal stocks
“It also contains brief items of news of a general character.
“It contains a number of commercial advertisements, and the advertisements are not confined to any particular trade or business. It contains, from time to time, advertisements of a legal nature, such as notices of sales of real estate at auction, by trustees under deeds of trusts, notices of stockholders’ meetings.
“It is further agreed that the copies of said paper bearing dates the 10th, 21st, 23d and 30th days of August, 1894, in which the advertisement of the sale of the property in controversy appeared, are fair samples of the publication known as St. Louis Daily Record, and the same are hereto attached, marked exhibits ‘C,’ ‘D, ‘E’ and ‘F’ to this agreed statement of facts.
“It is further agreed that if the court shall find from the facts hereinbefore agreed that the notice of said sale was published ‘in a newspaper printed in the English language in the city of St. Louis,’ within the meaning of said deed of trust and said statutes of Missouri, then the plaintiff has title to the property in controversy; and if not, then the defendant has title.”
The trial court found for plaintiff. Defendants appealed, after the overruling of their motion for new trial and the due saving of an exception to that ruling. The bill of exceptions also preserves the agreed statement of facts as presented to the circuit court.
In an action of ejectment for the recovery of specific real property, the Supreme Court, in the exercise of appellate jurisdiction, has no power, under Missouri law, to reverse a finding of fact of the trial court where there is testimony to sustain it. Krider v. Milner (1889) 99 Mo. 145 (12 S. W. Rep. 461). That rule governing the proper exercise of the functions of the Supreme Court can not be abrogated by agreement of the parties so as, in effect, to call upon the appellate court to review a finding of fact in such an action as this.
If parties agree upon the ultimate facts and submit to the court the questions of law arising thereon, a review of the rulings on those questions may be had on appeal, assuming that they are duly presented for review. But a mere statement of certain admitted facts
Whatever our views may be as to the true meaning of the word “newspaper,” as found in such a statute, we do not feel at liberty to depart from the
The judgment is affirmed.