141 Mo. 586 | Mo. | 1897
— This is an action of ejectment which, was returnable to the circuit court of the city of St. Louis. It resulted in a judgment for plaintiff on January 12, 3895. The land in dispute is thirty feet of a tract containing ninety-three one-hundredths of an acre in block 3770 of the city of St. Louis, which the city claims to have condemned for a part of Martin avenue. The answer is a general denial.
Chronologically stated, the facts in this case are as follows:
First. In 1876 William A. Mosberger died, owning a tract of land amounting to ninety-three one-hundredths of an acre, of which the thirty foot strip here in controversy constituted a part.
Second. On May 18, 1876, the will of William A. Mosberger was filed for record in the probate court, which will bequeathed all of his property (except $1 each to his two children) to his wife, Matilda Mosberger, and her heirs forever,
Third. On the second of June, 1876, Matilda Mosberger qualified as the executrix under said will.
Fourth. On the fourth of October, 1878, the probate court ordered the real estate to be sold to pay the debts of the estate.
Fifth. On the eighth of March, 1879, Matilda Mosberger, executrix, filed her report of sale, showing that on the fourth Monday in November, pursuant to said order of sale, she sold the third parcel of land described in said order, being ninety-three one-hundredths of an acre (unimproved) and being land of which the thirty foot strip here in controversy constitutes a part, to Emil Teschemacher, for the sum of $150, and the probate court approved said-sale.
Sixth. On the eighth of March, 1879, Matilda Mosberger, executrix, executed a deed to said land so sold to Emil Teschemacher (but said deed was not put
Seventh. On January 10, 1883, the city passed ordinance number 12,324, establishing Martin avenue from Duncan avenue to the New Manchester road, thirty feet wide, and ordering the city counselor to institute proceedings for this purpose.
Eighth. On the thirtieth of July, 1883, the city counselor' instituted condemnation proceedings in the circuit court for the purpose of establishing Martin avenue, and Matilda Mosberger was made a party defendant, and was personally served by the city marshal. Thereafter, commissioners were appointed by the circuit court, who assessed the value of the thirty foot strip to be taken from the ninety-three one-hundredths of an acre aforesaid at the sum of $125, in favor of Matilda Mosberger, or the owner of a lot of ground situated in city block 2969, having a front of one hundred and seventy-five feet on Clayton road, by a depth of two hundred and seventy-two feet and seven and one-fourth inches eastwardly.
Ninth. The deed to Emil Teschemaeher, dated March 8, 1879, was not recorded until July 9, 1884, when he and his wife joined with Matilda Mosberger in a conveyance of the property to Mena Sieferer, wife of Frank Sieferer. The deed from Matilda Mosberger, executi’ix, to Teschemaeher, was then placed upon record on the ninth of July, 1884, and the deed from Teschemaeher and Mosberger to Mena Sieferer was placed on record on the tenth of July, 1884, but defendant insists there is no evidence that the deed to Teschemaeher was ever delivered to him at any time.
Tenth. The final judgment of condemnation was entered in the circuit court on the thirteenth day of November, 1884.
I. When this cause was considered by division number two of this court it was held that there was ample evidence of a documentary nature to show title in plaintiff to the land sued for, and that unless the condemnation proceedings by the city were valid the plaintiff’s judgment must stand. The defendant in the circuit court undertook to establish a valid condemnation, which was controverted at every point by plaintiff. - No declarations of law were asked or refused, and as we were wholly unadvised as to the theory upon which the court disposed of the defense interposed by the city, we held that inasmuch as no declarations of law were given or refused, there was nothing to review on the principal issue in the case. The learned city counselor having challenged that decision as being out of line with the recognized practice of this court, it was ordered that the case be transferred to the court in lane and it has accordingly been reargued. There can be no doubt that it is the uniform practice of this court to apply the law to the facts when there is an agreed state of facts, or where the evidence is wholly documentary, and its legal effect is simply matter of law. Waddell v. Williams, 50 Mo. 216; Henry v. Bell, 75 Mo. 194; State ex rel. v. Smith, 141 Mo. 1, and
II. In regard to objections by plaintiff to testimony offered by defendant, there is nothing to show that any of these objections were sustained, and consequently no exceptions were saved. We take it that the evidence must be considered as admitted under the order made “received subject to objection.” As no definite ruling was afterward made excluding any of said evidence, we consider it as admitted.
Section 4638, Revised Statutes 1889, expressly permits the successful plaintiff in an action of ejectment under our statutory form to “recover damages for all waste and injury.” Such a finding is held to be incidental to the judgment for plaintiff. Jones v. Manly, 58 Mo. 559; Lee v. Bowman, 55 Mo. 400.
It follows that no error was committed in admitting evidence of the damages which accrued by the city tearing down and removing plaintiff’s fence and destroying his garden.
IV. The court allowed $75 damages for the' loss incurred by the destruction of the fencing and crops and loss of rents and profits down to the verdict. The plaintiff had been evicted seven years. One dollar per month seems to have been the basis for the court’s finding. There is nothing to indicate that the verdict was unreasonable or excessive.
In Rines v. Mansfield, 96 Mo. 394, it was said: “Where it is shown in an action of ejectment that the land in controversy is in cultivation, it can not be said there is no evidence upon which to base a finding as to the value of the monthly rents and profits.”
Certainly it can not be said that these damages are more than nominal under the facts in evidence.
Precluded from an investigation of the principal points discussed by the defendant’s counsel because no declarations of law were asked or given, and finding no error in the remaining assignments of error, the judg