| Mo. | Oct 15, 1850
There is no question, but that the instruction given by the court for the plaintiff was correct, so far as it determined the relative value of the Mackay claims and the title of the inhabitants of St. Louis to the St. Louis common.
Whether Page, the plaintiff, or Morton from whom he purchased, has the legal title from the city, is the only matter controverted. Morton has a deed regular on its race from the city of St. Louis under its corporate seal. His title is so far prima facie good. The defendant proposed, on the trial, to go behind this deed and attack its validity in various ways. 1. He contended, that the plaintiff must show that a majority of the citizens of St. Louis had voted for the sale of the commons under the act of our Legislature in 1835. 2. He denies the constitutionality of the act of the Legislature in 1835, authorizing the sale of the commons. 3. He denies that the mayor and aldermen had any authority to make this deed. For this purpose he produces the Mackay title — a deed from Mackay’s widow to one Arund Rutgers, in 1825, for 23 arpents of this claim, including the land in controversy. A sheriff’s deed to one Blaisdell, by virtue of an execution against Mackay’s executrix, containing 15 19-100 acres, which last mentioned tract does not include any part of the land in controversy ; a deed from Blaisdell and wife to White & Gorman, and a deed from White & Gorman to George Morton. The records of the proceedings of the board of aldermen of St. Louis are then produced
It seems, that Morton’s deed from the city embraces the Rutgers tract, as well as the 15 acres he claimed through Blaisdell. The object of the testimony was therefore, to show that the deed of the city was unauthorized — that the corporate authorities had no power to sell under the law unless at public sale, except by way of compromise, and it was contended that the transaction with Morton was nota bona fide compromise, within the powers of the city authorities.
The first point, we are clear is not tenable. The city of St. Louis in disposing of her commons under the act of our Legislature does not occupy the position ef a mere trustee. The rules which govern this class of agents do not apply to the city authorities. A deed by a trustee, under a special power, must recite the power, and show on its face that the contingency has happened that would authorize the sale. The municipal corporation of St. Louis occupies a different position, more analogous to that which the United States does as a great landed proprietor. When a deed from the United States is produced, the grantee is not bound to show that all the prerequisites of the law have been complied with. It is not incumbent on him, when he produces his patent, to prove that the land was surveyed — and that it was duly proclaimed for sale by the President — and that it was offered for sale at public auction. These are preliminaries to a patent which the law requires, but the production of the patent raises the presumption that these preliminary acts have been duly performed. Nor will our courts hear any objection from the opposite party, on account of a defect in these prior proceedings, Unless that party holds a conflicting title from the same source. If the United States are satisfied, we have not considered it our duty to permit a mere trespasser to complain.
The objection founded on the denial of the power of the Legislature of Missouri to pass the act of 1835, was not pressed in the argument, and we shall not therefore go into that branch of the case.
The principal difficulty in this case is in determining how far a stranger can be permitted to inquire into the validity of the deed which the corporate authorities of St. Louis have made to Morton. One of two proposi~ tions seems to be the result of the proof offered. Either the city of St. Louis still owns this Rutgers tract of 23 arpents, or Morton has the legal title. If the effect of the proof is to show title in the city, we thinkit was properly excluded, upon the same principle which has authorized the rejection of such evidence in attacking a patent from the United States.(
The construction which has been urged at the bar to the recorded action of the city authorities is not necessarily involved in this judgment. Neither the resolution of the board of aldermen, nor the report of the committee upon which-it was based, intended to authorize the relinquishment of the city title to any-person who had no claim. To give Morton all the land he claimed, and 15 acres which he did not claim, was not, in my opinion, a compromise of claim within the true intent of the resolution. Such a course was virtually selling to Morton 15 acres in the common at $20 per acre, at private sale. This the board of' aldermen clearly had no power to do.
But on the other hand, Morton may have represented Rutgers or his heirs, by purchase or private arrangement, and if so, his legal title would be but a trust estate, so far as the Rutgers tract is concerned. Whether this tract was included in Morton’s deed with the consent of the owners or by their subsequent ratification, it is manifest that a court of equity would compel a.
Morton undoubtedly had a claim for 15 19-100 acres, and was entitled, under the resolution to a deed to this extent. To hold the deed void at law would sweep away the whole title, and leave it in the .city, who is not a party to this ejectment. Judgment affirmed.
(a) Bird v. Montgomery, 6 Mo. R. 528; Delauriere v. Emmerson, 14 Mo. R. 37; Funkhouser v. Longkolb, 26 Mo. R. 453.