22 Mo. 13 | Mo. | 1855
delivered the opinion of the court.
The main point in the argument for appellants was founded in the conception, that the deed which has given rise, to this
We do not deem it necessary to enter into any discussion as to the proper name of the instrument executed by the authorities of the city of St. Louis to N. B. Atwood, under whom the appellants claim. The instrument was effectual to convey away all the interest the city had in the premises in dispute, and a compliance with its terms on the part of the lessee and his assigns, would have effectually barred all right the city might have had in the lot. It is true, there were conditions annexed in the instrument on the performance of which the lessee or his assigns would have been entitled to an estate in fee. But these conditions constituted no separate and distinct estate ; they were mere incidents to the lease or sale, and would naturally terminate with ic. Any act which avoided or annulled the lease would destroy all conditions annexed to it.
How, then, does this case stand? The instrument under which the appellants claim, purports to have been made in compliance with the ninth section of the act of the general assembly, entitled “ An act to authorize the sale of the St. Louis commons,” approved March 18, 1835. This instrument is a substantial compliance with the act. It is, in effect, a perpetual lease, with a privilege in the lessee to convert it into an estate in fee, by complying with the conditions contained in the instrument of lease. There is also a clause in the deed by
The right to enforce a forfeiture or annulment of the lease being conferred by an act of the general assembly, Avhich can not be relieved against, it remains to be inquired into, Avhether the appropriate steps Avere taken by the city authorities to carry it into effect. Whilst courts will not incline to forfeitures, yet when a right to exact forfeiture is given, they should not withhold a reasonable construction from the written instruments by which they are designed to be enforced. Taken'in connection with the facts, it is impossible to place any other interpretation on ordinance 766 than that which will make it effectual for the purpose for which it was intended. The objections to the ordinance are verbal. There is no force in them. No one can read the ordinance in connection with the deed or conveyance and entertain any doubt as to its meaning. The right reserved
The view we have taken of ordinance 766 relieves us of the necessity of saying any thing in relation to ordinance 2826, not intending thereby to detract any thing from the weight to which it is entitled.
The change of the name of a corporation does not affect its. rights. In its new name, a corporation may proceed to enforce rights acquired under a former name, and the same remedy is open to those who had claims upon it before the change. A corporation which has been suspended by the loss of the governing members may be revived by a name different from that by which it ivas formerly known, still preserving its identity and ancient lights. (Willock, 36.)
The act of 18th March, 1835, under which the sale or lease was made, took effect on the 1st December, 1835. On the 26th February, 1835, an act was passed conferring a new charter on the city by the name and style of the “ mayor, aldermen and citizens of the city of St. Louis.” This act, too, it would seem, took effect on the first December, 1835. The name of the incorporation given by this act is the same by which the
What has been said in relation to the change of names of corporations, is an answer to the objection that, in the new charter of 1839, under which ordinance 766 was passed, there was no reservation of the power to annul the sales made by the mayor'and aldermen. In addition to this, the seventh and eighth sections of the seventh article of the charter of 1839 are sufficient to preserve all rights belonging to the city under former charters.
Another point made by the appellants was, that the annulment of the sale to Atwood did not revest a fee simple in the lot in the city of St. Louis ; that such an effect could not be produced unless the city had been the owner before the annulment. The case of Swartz v. Page, (13 Mo. 610,) certainly goes on the idea that the city had power to convey a fee simple title to the commons. In the case of DuBois v. Bramell, (4 How. U. S. Rep. 458,) the court says : “ In January, 1831, the city of St. Louis and other towns applied to have their rights of common further confirmed and regulated, and an act of congress was passed declaring that the United States do hereby relinquish to the inhabitants of the several towns of St. Louis, &c., all right, title and interest in and to the town or village lots, out-lots, common-field lots and commons, to be held by the inhabitants of the said towns in ‘ full property,’ and to be regulated or disposed of for the use of the inhabitants according to the laws of the state of Missouri. This law vested in the city corporation the town common in fee simple, and gave full power to the legislature of Missouri to incorporate it into the city by extending the city charter over it.” The right of congress to pass any law affecting the right to commons, after the act of 1812, has been questioned ;'but this exercise of power has its foundation, it is presumed, in the nature of commons. The right to commons in the inhabitants was not inconsistent with the idea of a fee in the sovereignty under which they existed. The words “ in full property,” in
There was an admission in the answer that the lot was cultivated, and that one. of the defendants lived upon it. Under these circumstances, the amount of the damages was exclusively for the jury.
Judgment affirmed,