Volume 257 — Missouri Reports

Certiorari. (1) A plaintiff may dismiss any suit pending in a conrt of record at any time before it is finally submitted to tbe conrt or jury. R. S. 1909, secs. 1979-1980'; Houston v. Thompson, 87 Mo. App. 63. The rule in will contest cases is- not applicable to other cases. Benoist v. Murrin, 48 M|o. 48; Hughes v. Burris, 85 Mo. 660; Norton v. Paxton, 110 Mo. 456. (2) An insanity proceeding is a “suit” within the meaning of the statutes providing for dismissal and non-suit.

Certiorari. (1) A judge of tliis court has power to issue a writ of certiorari in vacation. State ex rel. v. Dearing, 184 Mo. 647; State ex rel. v. RomBauer, 105 Mo. 103; State ex rel. v. Rombauer, 104 Mo. 619.

Certiorari. (1) The passage of an ordinance and the filing of a certified copy thereof were conditions precedent to the making of any order whatsoever by the circuit court and because of the city’s failure to comply with the charter requirements in that regard the circuit court was without jurisdiction or authority to issue summons or to appoint commissioners, and its orders so doing should be quashed.

Mandamus. (1) -Mandamus is a proper remedy to compel the issuance of a license to keep a dramshop, if the dram-shop law was in force in Mexico, Missouri, when the license was refused, and the Local Option election was illegal and void. State ex rel. v. Turner, 210' Mo. 77; State ex rel. v. Ross, 160' Mo. App. 682; State ex rel. v. Ross, 161 Mo. App. 671.

Jackson Circuit Court. — Hon. E. E. Porterfield, Judge. (1) On the entire record plaintiff was not entitled to recover (a) Because of his own negligence; (b) Because of his assumption of the risk flowing from the manner in which he attempted to do the work. Gibbons v. Railroad, 66 Iowa, 231; Warmington v. Railroad, 46 Mo.

Louis City Circuit Court. — Hon. George W. Shields, Judge (1) Defendants were not negligent. They had performed every duty which the law and the circumstances imposed upon them. Moore v. Railroad, 85 Mo. 588; Sehaub v. Railroad, 106 Mo. 87; Browning' v. Railroad, 124 Mo. 55; Card v. Eddy, 129 Mo. 510; Grattis v. Railroad, 153 Mo. 380; Jones v. Railroad, 178 Mo. 528; Livengood v. Lead Co., 179 Mo. 229; Edge v. Electric Ry. Co., 206 Mo. 471; Zellars v. Light Co., 92 Mo.

— Hon. James E. Goodrich, Judge. (1) The proposition embraced in the first declaration, tbat tbe deed from Rivard and wife to Honck et al., was a nullity as to tbe wife’s interest, because not acknowledged as required by tbe statutes in force at tbe time, is clearly error. Tbe conveyance of a wife’s separate property is not void, because not acknowledged. Seivers v.- Kleeburg, 56 Mo. 196.

— Hon. Thomas J. Seehorn, Judge. The decree and judgment rendered hy the circuit court in this case, dissolving the temporary writ of injunction and .finding in favor of the respondents is erroneous, not sustained By^the law or the facts in the case, and should be reversed.

— Hon. Frcmcis H. Trimble, Judge. (1) There was not sufficient corroboration of the testimony of Carrie Miles, as to the promise of marriage. R. S. 1909, sec. 5235; State v. Heed, 57 Mo. 254; State v. Miller, 44 Mo. App. 159. (2) The evidence of Drs. Miller and Davis should have been admitted.

— Hon. Walter A. Powell, Judge. (1) The contract is one of bailment for mutual benefit, (a) It contained a warranty or agreement that the engines were fit and suitable for use in construction service in Arkansas and Louisiana, (b) It contained an express agreement or warranty that the engines had been overhauled and were in first-class operative condition, (c) Under the contract the engines were intended for the specific purpose of operation and use in construction work in…

— Hon. James D. Barnett, Judge. (1) The defendant had a valid de facto existence at the time of incurring the obligations sued on, and cannot now escape liability thereon.

Louis City Circuit Court. — Hon. Thomas C. Hennings, Judge. (1) ■ An ordinance of a municipal corporation may be declared void by the courts, as. being unreasonable, fraudulent, arbitrary or oppressive. City v. Hyde, 196 Mo. 498; Hannibal v. Telephone Co., 31 Mo. App. 23; Corrigan v. Grates, 68 Mo. 541; Ligare v. Chicago, 139 111. 46; 2 Dillon on Municipal Corporations (5 Ed.), secs. 580, 778,1578, note p. 2779; State ex rel. v. Grates, 190 Mo. 540.

<p>Appeal from St. Louis City Circuit Court. — HonJ James E. Withrow, Judge.</p>

, Louis City Circuit Court. — Row. Eugene McQuillin, Judge. (1) By Sec. 2380', R. S. 1900, appeals in divorce suits must be allowed at the term in which the judgment or decree appealed from, was rendered, or a writ of error must be sued out within sixty days after the rendition of the judgment.

— Son. William D. Rusk, Judge. (1) To render an assessment for a public improvement valid the various acts prescribed by the statute, must, in all essential particulars, be strictly performed; otherwise the assessment will be void. The rule is universal and applies to all statutes upon the subject of taxation, whether for local government or public revenue.

— flow. Jamies H. Slover, Judge. (1) The court committed error in refusing the demurrer to the evidence and the defendant’s instruction in the nature of a demurrer offered at the close of all the evidence, because the evidence fails to prove facts sufficient to constitute a cause of action. 1 LaBatt on Master and Servant, secs. 29, 267; Holloran v. Iron & Foundry Co., 133 Mo. 470.

David E. Blair, Judge. (1) A sale, in this State, of goods which are in another State at the time of the sale, is interstate commerce, and no license is or can be required for making such sale.

<p>Appeal from Gentry Circuit Court. — Hon. G. W. Wannamaker, Judge.</p>

Louis City Circuit Court . — Hon. W. B. Homer, Judge. (1) The ordinance for the reconstruction of the Old Manchester Road was invalid, because the requirements of the charter of the city of St. Louis were not complied with in the enactment of the ordinance, in that no valid or sufficient reason for the ordinance in opposition to the majority remonstrance, was assigned by the Board of Public Improvements.

— How. J. H. Slover, Judge. The Southern Company is not liable for the debts of the Gulf Company or of the Belt Company upon the theory of a consolidation of these companies. R. S. 1909, secs. 1059, 1061; Harriman v. Securities Co., 197 U. S. 244; State ex rel. v. Leseur, 145 Mo. 322; Railroad y. Missouri, 152 U. S. 301; Burge v. Railroad, 100 Mo. App. 464; Dicky v. Railroad, 122 Mo. 223; Holton v. Railroad, 25 Mo.

Appeal* from Nodaway Circuit Court. — Hon. William G. Ellison, Judge. (1) A fundamental principle of statutory construction is that the real intention of the Legislature must prevail. Black on Interpretation of Laws (2 Ed.), p. 180; Verdin v. St. Louis, 131 Mo. 26; Church of Holy Trinity v. U. S., 143 U. S. 457; Perry y. Straw-bridge, 209 Mjo. 621; Decker v. Diemer, 229 Mo. 296; State ex rel. v. Walker, 240 Mo. 708.

— Hon. Jesse C. Sheppard, Judge. (1) The title of T. C. Powell not being a perfect paper title, the defendant has the right if he so desires to refuse to accept it, but as a condition precedent to his making this kind of a refusal he must restore to the intervenors the possession he acquired from Canady, through intervenors’ chain of title.

<p>1. CONDEMNATION: Two Stages. Condemnation, proceedings have two stages or hearings: one, upon the sufficiency of the petition and the right to condemn; the other, upon the compensation to he paid for the property tahen or damaged.</p> <p>2. -: Right to Condemn: Interurban Railway. Upon the authority of State ex rel. v. Williams, 227 Mo. 1. c. 47, it is held that the St. Louis Electric Terminal. Railway Company has the right to condemn property for its right of way and depot purposes, whether it he a railroad company under the steam railroad statutes, or an interurban railway company, for if the latter it was by Laws 1907, p. 174, given' the same rights and power as steam railroads in the matter of condemning property for railroad purposes.</p> <p>3. -:--: Abandonment of Charter Route: As Affected by Prohibition Writ Upholding Right to Condemn. The refusal of a writ of prohibition applied for by defendants, directed to the trial court and refused on the ground that the plaintiff as an interurban railway had the statutory power to condemn property for depot purposes, does not' preclude the defendants from urging the defense of abandonment pleaded in their answer, to-wit, that the plaintiff had abandoned a material portion of the route of its railway, as described in its charter, and therefore was without authority of law to condemn any property for any purpose.</p> <p>4. -: Measure of Damages: Value Enhanced by Plaintiff's Near-by Depot. When the whole property is being taken the jury should not be authorized to consider either enhancements or depreciation in the value of the property brought about by the construction of other improvements ,by plaintiff on near-by property. Where the building of railway tracks, switches and passenger and freight depots in a city is a part and parcel of one unified scheme of continuous construction, and the freight depot is built before the time comes for the jury to assess defendants’ damages caused by the taking of all their near-by property for passenger-depot purposes, the jury should not be instructed to take into consideration any enhancement or depreciation in the value of defendants’ property caused by the location and construction of said freight depot.</p> <p>5. -: -: -: Evidence: Contract of Attempted Purchase. A contract of purchase of the property sought to be condemned for passenger purposes, made by defendants’ agent and disavowed by them, is not competent evidence on the question of value, but is compétent as tending to show that the whole improvement was a part of one general and continuous plan of construction and that such plan included the acquirement of the property in question, and is material if the defendants claim that the building "of the passenger and freight depots were independent acts and that they are therefore entitled to any enhancement in the value of their property caused by the construction of the freight depot in the vicinity.</p> <p>6. -: -: Value of Other Property as Standard. Evidence of the value of other property on the same street, dissimilar to the property in question, is incompetent as a standard of value, in the condemnation proceeding.</p>

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The verdict of the jury is not excessive. (2) The granting of a new trial on the ground assigned ■ — assuming that the trial court had such power — was an abuse of judicial discretion. (3) In passing on this question this court ought to assume that the plaintiff’s evidence is true, and indulge in her favor every fair and reasonable inference which the evidence sustains.

— Hon. William D. Rusk, Judge. The court erred in not dismissing plaintiffs’ bill at the close of the evidence, (a) The burden was upon the plaintiffs to prove that John Marr and Barbara Marr entered into a contract by the terms of which John Marr agreed that, (1) in consideration of Barbara Marr making a. will leaving her property to him for life, remainder to her six children, (2) John Marr would or did execute a will leaving his property to Barbara Marr for life,…

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Busk, Judge.</p>

—IIon. B. B. Middlebroolc, Judge. (1) There is no such thing as a lien of a judgment upon the homestead of the judgment debtor; therefore the homesteader may convey the same unaffected by the judgment and such sale will not he fraudulent. Grimes v. P'ortman, 99’ Mo. 229'-; Bank v. Guthrev, 127 Mo. 195; Macke v. Byrd, 131 Mo. 382; Rose v. Smith, 167 Mo. 81; Reed v. Nicholson, 189 Mo. 396; Seilert v. McAnally, 223 Mo. 505.

Mandamus. (1) The Act of 1911 (Laws 1911, p. 301), entitled, “An Act defining certain classes of indemnity contracts, prescribing regulations therefor, and fixing a .license fee,” is not unconstitutional and void. It does not violate section 28 of article 4 of the Constitution of Missouri. The title clearly expresses the general contents of said act. Said act does not contain more than one subject..

Louis City Circuit Court. — Eon. C. C. Allen, Judge. (1) Tbe passage of the ordinance authorizing the city counselor to cause Kingshighway to he established as a boulevard, is not a condemnation of the property-described in the ordinance.

— Now. Thomas J. Seehorn, Judge. STATEMENT. 'Plaintiffs sued for injuries to their property caused by the building of an electric street railway, asking $35,000 as damages. The judgment was rendered for defendant from which plaintiffs appealed to this court (Rourke v. Railroad, 221 Mo. 46) where the judgment was reversed and the cause remanded.

<p>Mandamus.</p> <p>(1) The circuit court was without jurisdiction to finish the trial at the May, 1913, term. State v. Jeffors, 64 Mo. 376; 12 Cyc. 271; 12 Ency. PI. & Pr., p. 658; 24 Cyc. 263; Sec. 4015, R. S. 1909; Laws 1911, p. 174; Laws 1913, pp. 217-18; Rules of the Circuit Court, Jackson County, Mo. Sec. 3876, R. S. 1909, did not give the court and jury power to proceed with the trial. This statute was in force at the time of the decision in the Jeffors case, supra. (2) The rules of the circuit court of Jackson county have the force and effect of law and when a mistrial occurred "by the discharge of the jury it was the duty of respondent, acting as judge of said court, to immediately return said case to the general docket. Rule 22, Circuit Court, Jackson County, Missouri; Laws 1913, pp. 211-12; Rigdon v. Ferguson, 172 Mo. 52; 2 Bouvier’s Law Dictionary, p. 428. “ ‘Mistrial’ is equivalent to no trial.” Baird v. Railroad, 61 Iowa, 359'. Rule 22 requires that, “whenever the trial of a case shall result in a mistrial, said case shall he immediately returned to the general docket.” (3) The trial court having plainly erred on a point of practice in misapprehending its own rules, and also in misapprehending a plain rule of law, and thereby prevented a trial of the cause, mandamus will lie from the Supreme Court to remedy the error. State ex rel. v. Phillips, ■97 Mo. 332.</p> <p>(1) This is not a proper case for mandamus, irrespective of whether the rulings of the respondent were right or wrong. Mandamus will not lie to annul judgments, however erroneous. In such cases appeal or error are exclusive remedies. State ex rel. v. Thurman, 232 Mo. 130'; State ex rel. v. Smith, 105 Mo. 6; Williams v. Judge, 27 Mo. 225; Dunklin County v. District Court, 23 Mo. 453; State ex rel. v. Court of Appeals, 87 Mo. 374; State ex rel. v. Lafayette County, 41 Mo. 225; State ex rel. v. Walker, 85 Mo. App. 247; State ex rel. v. Broaddus, 207 M'o. 124. (2) Relator since the institution of this suit, to-wit, November 6, 1913, has filed, a motion before respondent judge to vacate the orders overruling his motions for a new trial and in arrest and for judgment non obstante; which motion is now pending before respondent, so that relator by said motion is now attempting to obtain in the circuit court all the relief he now asks in this court, and wherefore this mandamus should be refused. Relator cannot proceed both in the circuit court and in this court, especially by mandamus. By filing such motion to vacate, the relator has conclusively admitted that he has not exhausted his alleged remedy before respondent and for this reason alone mandamus should be denied. State ex rel. v. Weeks, 93 Mo. 499; State ex rel. v. Miller, 129 Mo. App. 390'. (3) By express statutory enactment the ending of the term did not destroy the court’s power to proceed with the trial, nor did it operate to discharge the jury. State v. Samuel, 3 Mo. 69; R. S. 1909, sec. 3876; Pike Co. v. Hammons, 129 Ind. 3801; Sutherlin v. State, 150 Ind. 154; Machine Co. v. McCaffrey, 139 Ind. 558; People v. Warden, 117 App. Div. (N. Y.) 154, 192 N. Y. Supp. 374; Mapstrick v. Range, 9 Neb. 394; State v. Hasty, 76 S. C. 105; State v. McGrinsey, 80 N. C. 377; Briceland v. Commonwealth., 74 Pa. St. 463; Carroll v. Commonwealth, 84 Pa. St. 107.</p>

— Eon. Francis E. Trimble, Judge. (1) • The judgment of the court in dismissing plaintiffs ’ petition and refusing an injunction was error because the proceeding under Chap. 102, art. 7, R. S. 1909, contemplates the taking of plaintiffs ’ property without due process of law in this: The value of plaintiffs’ property was assessed to determine its proportion of benefits arbitrarily without either notice or hearing, contrary to sections 21 and 30, art. 2, Constitution of…

<p>For the reasons stated in the Embree Case, ante, page 593, the judgment in this case is affirmed.</p>

<p>For the reasons stated in Embree v. Kansas City & Liberty Boulevard Road District, ante, page 593, the judgment in this case is affirmed.</p>

<p>1. QUIETING TÍTLE: Multifarlousness: Bill of Peace. Notwithstanding in a suit in equity to quiet title an objection of multifariousness may be raised, since many persons claiming to own land in severalty, some of whose titles depend on limitations .and are separately asserted, are joined as defendants, yet both ■sides may refuse to object to the omnibus character of the ■petition, and assume that such common relation exists among defendants, and such common interest and common question are involved, that the equitable doctrine of avoiding a multiplicity of suits so controls the situation as to permit a general bill of peace.</p> <p>2. -Improvements: Laches. Where unimproved land, as the result of a partition suit brought by the assignee of the administrator of a partnership which the title records do not show was the owner, was sold many years ago, and improvements to the amount of many thousands of dollars were made by the purchaser’s grantees on the faith of an established title, .and the flux of time and laches have been marked, the grantees’ title ought not to be disturbed except for the gravest reasons and only to preserve settled and indisputable principles relating to real property.</p> <p>3. -: Railroad Company as Defendant. Whether or not Sec. 650, R. S. 1899 (Sec. 2535, R. S. 1909), relating to a remedy for determining and adjudging title to land, applies to a railroad defendant, which has long used the land for its tracks, is not decided in this case, because both sides concede it does apply, and the case was tried on that theory.</p> <p>FRAUD: Based on Conjecture: Presumption of Honesty. Where actual fraud is not made out, but its imputation is based on conjecture, speculation, theory and lack of diligence, in matters in which the active participants are all long since dead, including administrators, executors, creditors and purchasers at a partition sale, the presumption of honesty must be kept in view, and fraud held not to be established.</p> <p>5. LACHES: Aided by Estoppel. As estoppel and laches may meet in a faded line and overlap at the edges, existing elements of estoppel in pais may serve as an aid to laches.</p> <p>6. QUIETING TITLE: Estoppel: Accepting Benefits of Illegal Sale. Whether or not the acceptance of benefits by the assignee for the benefit of creditors of a partnership estate from the surviving partner as administrator, will be held to estop the subsequent administrator of said partnership from attacking the validity of a partition sale of the land to defendants in a suit brought by such assignee, will not be decided where the decree of the chancellor for defendants was not placed on that ground.</p> <p>'7. JURISDICTION: Assignment of Partnership Estate: Former Decision: Stare Decisis. The judgment in a former branch of this case (State ex rel. v. Withrow, 141 Mo. 69), holding that, under the statutes in force in 1873, jurisdiction of a partnership estate could not be transferred from the probate court to the circuit court by means of a voluntary assignment of the surviving partner as administrator to an assignee for benefit of creditors, and hence that the deed of assignment was void, is held to be stare decisis.</p> <p>•8. LACHES: Definition. The word laches at its root means laxness, negligence, neglect. Laches consists in not doing something which a party might do and might reasonably be expected to do in the vindication of his right. It does not rise to the rounded dignity of estoppel, and yet in its equitable application it borrows from the doctrine of estoppel.</p> <p>9. -: When Available as Defense: Variant Circumstances. Laches gives rise to an equitable doctrine, free from artificial or fixed rules, having regard to the relation of the parties to each other and to the subject-matter, to be applied in each case in accordance with its own peculiar circumstances in order to reach substantial justice — for instance, where plaintiff lies by an unreasonable length of time awaiting a rise in land or some future event to determine'his course, or where by acquiescence or by sleeping upon his rights he creates the belief in others that those rights are abandoned, whereby he induces them to act on such belief, or where something has intervened whereby he would obtain an unconscionable advantage were the relief he asked granted — under these or like conditions, where there is some natural justice behind his claim, the defense of laches is allowed, independently of limitations.</p> <p>10. -: -: Lapse of Time Without Action. Where the surviving partner as administrator of an insolvent partnership, after having made two annual settlements, made an assignment of all the partnership assets for benefit of creditors, including an inventoried interest in land, whose title stood of record in the name of the deceased partner, and said administrator was . thereafter removed, and the assignee brought partition suit in the circuit court and had the land sold to a purchaser, who in turn sold it, by parcels, to the various defendants, who have put valuable improvements thereon and paid the taxes, a suit to quiet title brought by an administrator de bonis non appointed twenty-two years after said surviving partner was removed and brought on the theory that the circuit court had no jurisdiction of said assignment proceedings or the partition suit and the sale and deed were in consequence void, and brought after all creditors are dead or their claims barred and hence for the benefit of the heirs of the deceased partner who for twenty-five years have been sui juris, should be held to be barred by laches on the ground of neglect, unless to so hold would be to contravene some stubborn and controlling principle of law — for instance, that the doctrine of laches has all along been suspended by Us pendens or custodia legis.</p> <p>Held, by WOODSON, X, dissenting, with whom BOND, X, concurs, that the assignment was void, and the assignee a mere intermeddler, by whose wrongful acts the property was diverted from its legal channels, and the doctrine of laches cannot be invoked by a wrongdoer against those ' upon whom the law places no legal duty to move in the matter.</p> <p>11. LIMITATIONS: Based on Void Deed. Though defendant’s possession began under a void deed, void because bottomed on a void judgment, yet the actual, uninterrupted, peaceable and adverse possession of the land by him during the period of time prescribed by the statute, under claim of right, gives him the title — unless limitation is suspended by lis pendens or custodia legis.</p> <p>12. LIS PENDENS: Suspension of Laches and Limitations: No Jurisdiction of Subject-Matter. IAs pendens implies that the court had jurisdiction of the subject-matter and parties; it implies a controversy in court. If the court had no jurisdiction ab initio of the subject-matter, the property involved was not in lis pendens, and the application of the doctrine of laches or the law of limitations was not suspended by the fact that a void sale in partition of the property was never approved by the court.</p> <p>13. CUSTODIA LEGIS: Title, to Partnership Real Estate: Suspension of Laches and Limitations. The legal title to an aliquot part of real estate was in Dickson, who died, and his surviving partner, as administrator, inventoried the land as an asset of the partnership, and thereafter sold it, by general assignment for the benefit of creditors, and in pursuance to a void proceeding in partition in the circuit court brought by such assignee (void because the court was without jurisdiction), the property was sold and under a. deed by the commissioner defendants entered into possession and have been in possession for many years. Held, that neither the land nor its legal or equitable title was in custody of the probate court or the administrator; and hence neither the defense of laches nor of limitations to a subsequent administrator’s right to recover the land was suspended by the supposed fact of custodia legis. Custodia legis involves the actual domination over some objective thing by the court. It is that custody only which an officer has the right to assume over property by virtue of legal process. It does not include the mere controverted right to possession, but it must be the actual possession itself in the officer; and though land purchased by partnership funds be treated in equity as personal property, and where the legal title is vested in a deceased partner, the equitable title is in the surviving partner, yet to obtain the legal title that partner (or his assignee) must enter a court of equity, and not the probate court; and, hence the theory that the property, for a long time in the actual adverse possession of .defendants who have improved it, was in the custody of the probate court or the administrator, will not avail to suspend or supplant the defense of laches or of limitations.</p> <p>Held, by WOODSON, J., dissenting, with whom BOND, J., concurs, that the surviving partner, upon the death of the partner to whom land bought with partnership funds had been conveyed, at once, upon his appointinent and qualification as administrator of the partnership estate, acquired the title and possession of said land, and upon his removal the title and the possession (the res) thereafter until the appointment of an administrator de bonis non, were in custodia legis and remained in possession of the probate court, notwithstanding the illegal attempt, after the general assignment for creditors, to transfer the whole matter of administering the estate to the circuit court; and the title (whether legal or equitable) and the possession (an administration in the probate court being a proceeding in rem) being in custodia legis, limitations did not begin ,to run in favor of those who entered into actual adverse' possession under the void partition deed until the appointment of the administrator de bonis non.</p> <p>14. PARTNERSHIP LAND: Personalty or Realty: Limitations and Laches. Conceding that partnership land, of which the deceased partner held the legal title, was, for liquidation and winding up purposes personal property and constructively in the possession of the probate court’s administrator by virtue of that court’s jurisdiction, it was still real estate for the purpose of the application of the Statute of Limitations and the doctrines of laches. The administrator’s equitable title may be lost by limitations by actual adverse possession or by laches, just as may the legal title. Actual possession is the live element both of limitations and custodia legis, and no property can be said to be in custodia legis which is in the actual possession of an adverse claimant. [WOODSON and BOND, JJ„ dissenting, in an opinion by WOODSON, J.]</p>

<p>LIMITATIONS. Where the Statute of Limitations has begun to run in favor of the city which holds certain wharves and streets by prescriptive right, against a partner who held the legal title for a partnership, it continued after his death to run against the surviving partner as administrator, and if continued for the length of time prescribed by statute, the title vests in the city.</p>