Hannibal & St. Joseph Railroad v. Green , 68 Mo. 169 ( 1878 )

Norton, J.

1 trustee: estoppel-

This is ejectment, and both parties look to the deed of E. M. Samuel as the common source of The Samuel deed was unquestionably sufficient to pass the title to Davis, who accepted the trust as the deed shows, and who entered upon his duties as trustee by making a plat of the town of Hamilton in 1855 or 1856, acknowledging and filing the samev for record, as the evidence shows. As defendant claims under a deed subsequently executed by Higgins, the successor of Davis in the trust, in which the plat made by Davis was recognized, he does not stand in an attitude to dispute the authority of Davis to act as trustee. Merchant's Bank v. Harrison, 39 Mo. 433.

2. trustee’s deed: erciseof'powerof sale'

The objection made to the introduction of the deed from Davis to plaintiff on the grounds that there was no evidence that he had executed a bond to the company nor any evidence that a “majority of the town company had ever adopted or filed rules regarding the price of lots, the terms of payment,” &c., and that the deed does not show that it was made by Davis as trustee, was properly overruled. The deed of Davis, if made as trustee, was effectual to pass the title to the grantee, although he may have been guilty of a breach' of trust. Gale v. Mensing, 20 Mo. 461.

3. trustee’s ueed, when it conveys the trust estate,

The deed of Davis not only purports to be his act as trustee of the “ town of Hamilton,” but purports to convey a part of the tract of ground known as ^ 1 ° .... , the town of Hamilton, and tor a full description of the property conveyed refers to the plat of the town then on file in the recorder’s office: This we think was a sufficient reference to the source of his power, and also to determine whether he was executing it in his own right or as trustee. Hagel v. Hagan, 47 Mo. 278.

4 repugnant mbscriptions.

We cannot, perceive how the objection to the deed that the land was described in the southeast instead of the southwest quarter of the section, could have been raised on the introduction of the deed. It contained two descriptions, one being general by numbers, the other particular by reference to the plat of the town, and if, on the trial, they were found to be repugnant, the latter would control. Fenwick v. Gill, 38 Mo. 525; Evans v. Greene, 21 Mo. 170.

5. trust deed: nominal consideration: railroad,

The objection to the deed that the consideration was nominal, is answered by the ease of Gale v. Mensing, supra, and the case of Draper v. Shoot, 25 Mo. 197, in ..... which it is said that the failure to pay a nominal consideration cannot be shown to defeat a deed. The deed of Davis vested in plaintiff the title to the land which it described, and from October, 1859, when it was filed for record, defendant and all others are chargeable with notice of it. Under it plaintiff’s right of recovery in this suit is confined to a tract of land north of and adjoining the tract of ground occupied by the Hannibal & St. Joseph Railroad Company as shown by the plat of the town of Hamilton at the time the deed was recorded. Shelton v. Maupin, 16 Mo. 124; Nelson v. Brodhack, 44 Mo. 596; Dolde v. Vodicka, 49 Mo. 98. The subsequent change of plaintiff’s road 280 feet south of its original location, could not impair its right to the land as described in the deed.

We are unable to perceive the force of the objection to plaintiff’s first instruction, especially in face of the admission which the record shows the defendant to have made, namely, “that at the time of the commencement of the suit he was in the possession of the undivided half of lot one in block twelve, in said town, and had never set up any claim to any portion of the land described in the petition except lot one.” This is a plain concession that lot one was described in the petition. Besides this, Smith, who was a civil engineer, supplemented this admission in his evidence in the statement that he had made a survey of the premises in question, and that a strip of land 100 feet wide extending along and north of said railroad, where the same passes said lot, would include the strip of land mentioned in the verdict of the jury. This evidence, in connection with that of Davis showing the original location of the road, as shown by the plat on file at the time the deed was made, justified the court in giving the instruction and the j ury in finding the verdict returned by them.

6 principal and agent: railroad,

The second instruction asked by defendant was properly refused on the ground that there was no evidence on which to' base it. The" evidence does not gfoow that Davis, who filed the second plat of said town, was in that respect acting, or authorized to act, for plaintiff. It does show that the plat was made by the engineer of plaintiff, but whether at the request of Davis, as trustee of the town company, or as the agent of plaintiff, is not shown. Nor is there any evidence that any agent of plaintiff, charged with looking after its landed interests, either had knowledge of defendant’s purchase or improvements.

Ve deem it unnecessary to express an opinion in regard to the rights which defendant may have for any improvements under the occupying claimant law. Judgment affirmed

with the concurrence of the other judges.

Affirmed.