69 Mo. 595 | Mo. | 1879
This cause comes here by appeal from the
Plaintiffs, in support of their title and right to recover, offered in evidence a lease by Oarondelet of the lot in question to Delphy Carlin, dated 19th- day of July, 1843, and running ninety-nine years, for the yearly rent of $5.88, payable at the end of each and every year. The lease also contained, among other stipulations, the following: That if at any time the year’s rent of any one year, or any part thereof, should remain unpaid six months after due, the board of trustees of the town of Oarondelet might, by order or resolution, to be entered of record among the acts and proceedings of said board, declare such lease void; whereupon said lease should determine and end, and the trustees might enter and take possession of the demised premises. The plaintiffs also offered evidence showing the assignment of this lease to one Grimsley, and by him to Brownlee, and by Brownlee to Simon E. Lewis, whose descendants and representatives plaintiffs claim to be. Plaint
The first eight sections of said will made various bequests, and the ninth provided that after all the bequests were complied with, the remainder of his estate should be equally divided between his wife and children and their descendants, and nominated his wife, Mary C. Lewis, and his son, John S. Lewis, as his executors, empowering them to sell, dispose of and convey any and all real and personal property which they might deem necessary in the settlement of his estate. Plaintiffs also offered in evidence a deed to the property' in dispute, dated November, 1874, from Mary 0. Lewis and J ohn S. Lewis, executors of Simon E. Lewis, to the plaintiffs in this suit. This deed was objected to on the ground that the acknowledgment was-defective, and that it had never been recorded, and was irrelevant.
The evidence on the part of the plaintiffs tended to show that on the 19th day of January, 1858, one Barth, the agent of Lewis, offered to pay to the collector of Carondelet all that was due from Lewis on the lot of land in controversy; that he paid the sum of $14, all that was demanded, and supposed that it included rent as well as taxes, but on subsequent examination of the receipts given him, it only covered the taxes. Plaintiffs also offered evidence showing a tender to the proper officer of the city, in the fall of 1858, of all rent due on said property from
The defendant, on its part, offered in evidence a certified copy of the resolution of the council of the city of Carondelet, of date May 10th, 1858, in substance declaring that the rents reserved upon various leases (of which the lease to Carlin was one) are in arrear, and have been unpaid for six months since the same became due and payable, and still remain unpaid, and resolving that the said leases be, and they are, declared void. Said preamble and resolution, closing with the words above mentioned, were adopted by the council, and the mayor of the city approved and signed the same. The defendant read in evidence what purported to be a copy of the foregoing preamble and resolution, which concluded with the words: “Approved May 10th, 1858. Michael Chartrand, Mayor.” The above copies were objecte3 to on the ground that they were not true exemplifications of the record, which was offered to be established by comparison with the original record book of the proceedings of the council then in court. The objection was overruled, subject to the right of plaintiffs to impeach the same. The defendant also offered in evidence a certified copy of a resolution of the council, of date November 13th, 1866, forfeiting a number of leases for non-payment of rent, and among the number was the lease to Carlin of the lot in controversy. This resolution was approved and signed by the mayor, as required by the charter, and was spread in full on the record of their proceedings. The chief errors complained of, and to which our attention has been called, were as to the action of the court in receiving evidence objected to by defendant.
The objection made to the reception of the certified copy of the will and its probate, on the ground that a copy of the same had not been recorded in St. . . .. . -. Louis county, we think, not well taken, and ^ 7 7 . its reception was fully justified by the opmion of this court heretofore rendered in the case of Bright
It was not objected that .the record was not properly certified; the only objection being that section 34 of the act concerning wills required a copy to be recorded in St. Louis county before it could be received in_evidence. To give this section the construction contended for, would make it conflict with section 51 of the act concerning evidence, and the eases we have above referred to. It may be observed that section 34, supra, had a place on our statute book when the above cases were decided. Rev. St. 1835, §§ 19, 20, p. 619, and Rev. St. 1845, §§ 36, 37, p. 1084. It may also be observed that the above sections, as well as section 34 of the present statute of wills, which gives the right to put on record an authenticated copy of a foreign will, and makes a copy of such recorded exemplification evidence, give a right which would not have otherwise existed, and is affirmative in its character, and cannot have the effect to repeal section 51, Wag. Stat., page 598, which .declares that the records and judicial proceedings of any court of the United States, or any State, when properly authenticated, shall have such faith and credit given to them in this State as they would have at the place whence they came. An affirmative statute does not repeal a precedent affirmative statute, and if the substance be such that both may stand together, they shall have a concurrent efficacy. Dwar. St., p. 474.
The objection made to the admission of the deed in evidence, was not well taken, since the official character
The evidence, which we think was properly admitted, establishes the right of plaintiffs to recover, unless the lease made to Carlin of the lot in question was .... forfeited and declared null, as provided m the charter and in the lease itself. Defendant attempted to do this, but under the views expressed by this court in the case of Graham v. Carondelet, 33 Mo. 262, failed in the attempt. It was held in that case, that a similar lease to the one involved in this case could only be terminated by order or resolution, to be entered on record among t"he acts and proceedings of the-board. “ The entry on the record of a certain form of words is not sufficient, for it is an order or resolution which must be so entered, and there can be no resolution until itis approved and signed by the mayor. It is necessary, then, in order to terminate the lease, that there must be a resolution, approved and signed by the mayor, (for this the charter requires,) and entered on record among the acts and proceedings of the board, (for this the lease requires).” In the case before us, the record-of the acts and proceedings of the board of councilmen of Carondelet fails to show that any resolution, approved and signed by the mayor, was entered thereon, and, under the authority of the above cases, we are forced to declare the attempted forfeiture of the Carlin lease a nullity. The principle declared in the above case was re-affirmed and approved in the case of the City of Carondelet v. Wolfert, 39 Mo. 312.
Under the authority of this last case, the tender made by Lewis in the fall of 1858 was sufficient to pi’event a for-future for rent due at that time, although previous to the tender the city could, by proper proceedings, have forfeited the contract and declared the lease void. Hence it follows that the court below acted properly in refusing to instruct that the forfeiture of Carlin’s lease made in 1866, and offered in evidence, deprived the plaintiffs of the right to recover in this case.
Affirmed.