29 Mo. 356 | Mo. | 1860
delivered the opinion of the court.
This suit was commenced whilst the practice act of 1849 was in force • consequently it should have been conducted according to the provisions of that act. It was an action for the recovery of money, and therefore under the said act was properly triable by a jury. The prayer for a discovery did not the less make it a case to be tried by a jury. We have held that the act of 1849 abolished the bill for a discovery. (Worley v. Bond, 26 Mo. 253.) The case, then, being one for a jury, the court had no right to share its functions and take upon itself a portion of its duties. In cases to be tried by juries, the jury tries all the issues and the court gives the law. If parties waive a jury trial, and the cause is submitted to the court, then the court without a jury finds the facts and declares the law of them. We are speaking of the act of 1849. In this case, indeed, the court seems to have taken to itself the trial of the facts, and put the finding out of the law upon the jury. Whether the plaintiffs and defendants were tenants in common under the facts of the case was purely a question of law.
We will not undertake to say whether the sale in partition was valid or not on account of the deed having been executed by one commissioner only, the other two having died. It appears that the fact of the death of two of the commission
In a supplementary answer the defendant set up as a de-fence the first dedication in 1839 of the street which gives rise to, this controversy. If there was an actual dedication at that time, the property could not afterwards be resumed by those making the dedication. There is strong evidence of such a dedication; and the proprietors of the town can not take advantage of their violation of the law in not making the dedication in the manner prescribed by the statute. They may have subjected themselves to a penalty, and yet in favor of third persons their act will be binding. (The City of Hannibal v. Draper, 15 Mo. 638.) If this suit is again tried, it will be determined whether there was a dedication in 1839.
The plat of April 30,1846, is not in the record. We can, therefore, give no opinion as to its conformity to law. But we do not see, in the words of the statute, any foundation for the objections that it was not signed by the proprietors, and that the justice did not certify, in the acknowledgment taken, that they were known to him to be the persons they represented themselves to be.
We see no error in the ruling of the court in refusing permission to the witness to testify as to the advantage of the ferry to the town at large. As the plaintiffs claimed a sum of money, which they alleged was due them, we do not see how that circumstance could affect the amount claimed.
The important question in this case is whether, admitting that the plaintiffs and defendants are tenants in common of the ferry privilege, or street, or space of ground where the ferry was kept, the plaintiffs can maintain this action ? It is
But how much stronger is the ease before us than the one put ? Here are tenants in common of a parcel of land on which a ferry may be kept. One of them obtains a license and actually keeps a ferry, an employment that nowise lessens the value of the common property, but on the contra^y?^ heightens it. Each of the tenants may do the same tl'jjngj- y
As the plat of 1846 is not before us, we will hazard no opinion as to the effect of it between the proprietors.
As we suppose this suit was brought to try the right of the' parties to the ferry privilege, the cause will be remanded so that the parties may amend their petition in a way that their action may be adapted to that end.
The mode of trying the cause, and the error in the instruction in relation to the dedication in 1839, are sufficient to reverse the judgment.
Reversed and remanded.