| Mo. | Oct 15, 1871
delivered the opinion of the court.
The city o£ St. Louis established and opened Mercer street, appropriated land claimed by both plaintiff and defendant; the damages were assessed at $900, and paid to" defendant, and the plaintiff brings this suit for the money thus received. Both parties treat the proceedings of the city authorities as regular, and seek to affirm them, although they might have been avoided for non-compliance with the statute; and the question arises, whether there was such privity between these parties, that this action will lie.
In order to sustain an action for money had and received, privity of contract is not required. As a rule, when one person has in his hands money belonging to another, the law implies privity, and an action will lie on behalf of the latter. (Floyd v. Wiley, 1 Mo. 643" court="Mo." date_filed="1826-05-15" href="https://app.midpage.ai/document/floyde-v-wiley-6608667?utm_source=webapp" opinion_id="6608667">1 Mo. 643; Hall v. Marston, 17 Mass. 575.) And when money has been received from the wrongful sale of the personal property of another, the latter may waive the wrong and recover the amount received. (Floyd v. Wiley, supra; Jones v. Hoar, 5 Pick. 285 and note; Marsh v. Keating, 1 Bing., N. C., 199.) The fiction of a promise is now dispensed with, but the obligation is the same, and the title to the property thus wrongfully taken and sold is confirmed in the purchaser. The plaintiff seeks to
In the cases where parties are forbidden to try title by an indebitatus action, the present title is in dispute, the plaintiff is disseized, and seeks to recover by showing that the title is in him, and that he is entitled to possession, and hence that the one in possession holds under him as tenant; or, if the property has been sold, that its proceeds were received for his use. The implied ratification of an adverse claim cannot operate as a conveyance; hence there is no privity. If, however, the title passes by operation of law, and no deed is required, the statute of frauds is satisfied, and no principle is violated by holding that the sale may be ratified, and that the money received should be held for the true owner.
In an aetion of trespass against a municipal corporation for an illegal appropriation of land, it is held that a judgment for damages operates as a transfer of title, or dedication to the uses for which it was appropriated. (Soulard v. St. Louis, 36 Mo. 546" court="Mo." date_filed="1865-10-15" href="https://app.midpage.ai/document/soulard-v-city-of-st-louis-8001757?utm_source=webapp" opinion_id="8001757">36 Mo. 546.) The distinction between this case and the same action against an individual arises from the fact that, in order to pass title to the city, no conveyance is necessary, and hence the seizure may be treated as the true owner might treat a conversion of personal
I hence infer that under the present circumstances the law creates a privity between the parties; and I come to the conclusion with hesitation, as it seems to create an exception to the rule that the title to real estate cannot be litigated in an action for money received on its account. This is not, however, in a technical sense, a trial of title, and when the proceedings of the city have been regular, the true owner might be without remedy unless he could bring this suit; and if irregular, he certainly has a right to waive the irregularity.
I find no error of law in the record. All the declarations of law asked by defendant were given, except those upon the question heretofore considered; he claims, however, that the finding of the court was contrary to its declarations of law as applied to the evidence, and that he should have had a new trial.
The plaintiff, though claiming by paper title, evidently recovered under the statute of limitations. It is not disputed that there was evidence tending to show possession for over ten years, but inasmuch as the plaintiff claimed that the land covered by such possession was embraced in his deed, and that he held under the deed, the possession could not be adverse if he held beyond the true line. This claim is based upon the correct principle that if two adjoining proprietors are divided by a line which they suppose to be the true one, each claiming only to the true line
The plaintiff and defendant were divided by a small running stream. Some twenty years since, the position of this stream was fixed by survey, and defendant claims that what before had been a shifting became then a fixed line, and afterward the stream changed its bed. Upon this point the court seems to have sustained him, but must have found, as a matter of fact, that for more than ten years before the appropriation of the land by the city the plaintiff had been in possession up to the stream as it then ran, claiming that it was the true division line. If so, the defendant was disseized, and adverse possession was held, even if the bed of the stream had previously changed from its location when so fixed by survey, in regard to which the evidence was conflicting.
Most of the considerations urged by appellant were pertinent in the trial court but are not here. The ruling fact was found against him, and I am unable to find any error of law. The judgment will be therefore affirmed.