79 Mo. 41 | Mo. | 1883
This is an action of ejectment, brought by McShane, respondent, against the city of Moberly, to recover possession of a tract of land claimed by defendant to be a xiublic street in one of the additions to said town.
The case was tried on the following agreed statement of facts: (1) That the abstract of title hereto attached and marked “A,” is a correct exxiosition to the title in controversy. (2) That the property in controversy is a street, as shown, of Burkholders’s second addition to Moberly and W. W. and J. P. Porter’s addition to Moberly, filed for record Eebruary 1st, 1873, and March 1st, 1873, as shown by abstract. The dedication was accex>tcd by defendant and said street was improved and has been in use by the Xiublie ever since. (3) That the parties dedicating were the owners and proprietors of the land dedicated, subject to a deed of trust to M. Y. Buchanan, trustee for C. C. Buchanan, as shown by said abstract. (4) That M. Y. Buchanan and C. C. Buchanan knew of the dedication and filing of the plat, and made no objection then or since. (5) That said land was sold in July, 1875, under the said deed of trust to M. Y. Buchanan, trustee for C. C. Buchanan, and I). B. White and H. Sam Priest became the purchasers at the sale, and afterward deeded the same land to this plaintiff; all parties knowing said land' was dedicated, accepted and used by the public as a street. But White and Priest have never done or said anything at the time nor since their purchase at said sale under the deed of trust to M. Y. Buchanan, trustee, that would estop them from claiming the street if they ever had any right to it.
Burkholder and others, as the owners of the equity of redemption, had a right to grant an easement on or to convey the property to whom they pleased, so far as their own interests -were concerned. “A dedication of property for public use is m the nature of a conveyance for the purpose of the use; but a person can convey or donate no more or greater title than he holds. If he holds no title, or his title is conditional, and it fails, the dedication fails. This is axiomatic.” Gridley v. Hopkins, 84 Ill. 530.
The case of the People v. Herbel, 96 Ill. 384, presents a state of facts quite analogous, differing only in the fact that the cestui que trust became the purchaser at the foreclosure sale. There, as here, between the date of the mort
As is suggested in the foregoing opinion, no one but the absolute owner can dedicate land to public use so as to pass the fee unconditionally. 2 Greenleaf Ev., 663; City of Hannibal v. Draper, 36 Mo. 332. In Ward v. Davis, 3 Sandf. (N. Y.) 513, Duer, J., expresses this doctrine in strong terms : “ It is needless to cite authorities to prove that an absolute and final dedication of lands to a public use, can only be made by the owner of an absolute fee. It is a self-evident truth that he can only devote his real estate in perpetuity to the use of the public, who is competent to convey a fee by a perfect and unincumbered title to an individual.” So it follows that when the city of Moberly accepted the proffered dedication it took with notice of the unsatisfied mortgage, and that the donation was subject to be avoided by' a foreclosure sale under the mortgage.
Tested by this standard, it is palpable that the facts in the agreed statement of this case are not sufficient. They amount only to this: The mortgagee knew of the laying off the land into lots and streets, and the user for two years at the outside. The mortgagee did no overt act to encourage this appropriation of the premises. He -was not guilty of any concealment. His mortgage was on record, and this fact, the law of the statute declares, the defendant shall be presumed to know. When it was attempted, under circumstances equally as strong if not stronger than those in this case, to estop a mortgagee by acts in pais, this court, in Bales v. Perry, 51 Mo. 453, declared that: “ If a man holds title to his land by deed, which has been drily recorded, it is all the notice he is bound to give, so long as he remains passive.” The interest of the mortgagee in the premises is the amount of his mortgage debt expressed upon the face of his deed. And as before foreclosure the right of redemption resides with the owner of the equity of the redemption, the mortgagee had a right to presume that the city, when it began to deal with the premises, would and that it intended to perform its obligation to redeem. It cannot be
Since writing the foregoing opinion my attention has been called to the case of Masterson v. The West End, Narrow Gauge R. R. Co., 72 Mo. 342. There is no necessary conflict between the conclusions reached in the two cases. The opinion of the court of appeals was affirmed, holding that the mortgagee having taken his deed without notice of any rights of the railroad company was entitled to recover. In remanding the cause Hough, J., suggested that if as a matter of fact, the court should find when the case ivas re-tried that the mortgage was past due, so that the mortgagee had a right of entry when the company entered and built the road, then it was perhaps the duty of the mortgagee to have protested. But no such fact appears in the agreed statement in this case. That would have been a matter of defense to the defendant, and if it existed the duty was his, if he would avail himself of the fact, to have shown it affirmatively.
On the agreed statement of facts the judgment of the circuit court was for the right party, and its judgment is, therefore, affirmed.