Hull v. Phillips

ELLISON, J. In November, 1905,’the city of St. Joseph duly directed the grading of King Hill Avenue, in said city. Under the provisions of law a copy of the ordinance was filed in the Buchanan Circuit Court for proceedings in pursuance of law. At this time defendant was the owner of real property along such avenue which was affected by such proposed grading. On September 3, 1906, the circuit court appointed commissioners to assess damages and benefits to property. [250] On the next day, before a meeting had by the commissioners, the defendant conveyed the property by warranty deed to the plaintiff. Pour days after this deed, viz: on the 8th of September, the commissioners made their report assessing damages to the property deeded to plaintiff in the sum of three hundred dollars. This report was confirmed by the court on November 2, 1906. Afterwards, at the May Term, 1907, the plaintiff filed his motion claiming the damages as purchaser of the property. This motion was made under the provisions of section 5677, Revised Statutes 1899, of the charter of cities of the second class, providing that when the damages are paid into court and there be more than one claimant, the right thereto may be determined by the court on the motion of the claimant. The defendant filed an answer to this motion denying generally, each of its allegations, and setting up that at the beginning of the proceedings he employed an attorney (naming him) “by which he agreed to pay him one-third of all damages which should be recovered; that said attorney performed the necessary services to procure the allowance of damages shown on the records of this court. Wherefore said Phillips asks to be discharged with his costs.” The trial court ruled that the damages belonged to the plaintiff and gave judgment accordingly. The view of the trial court, in our opinion, was correct. Before any damages had been assessed by the commissioners the defendant sold and conveyed the property to plaintiff. The property to be damaged— the property for which, the assessment was made — was plaintiff’s property, purchased by him outright, without reserving such damages. We cannot understand why he should not be entitled to them when paid into court. His right is supported by Kiebler v. Holmes, 58 Mo. App. 119. The city might at any time have abandoned the proceedings before a confirmation of the re [251] port of the commissioners. [Kansas City v. Railroad, 189 Mo. 245, 259; Whyte v. Kansas City, 22 Mo. App. 409.] If the city had done so, would defendant have had any claim against plaintiff? Whatever the property Aims damaged was plaintiff’s loss; and if the proceeding had been discontinued by the city before confirmation of the report, the property would have been left in plaintiff’s hands unharmed. The right to the damages only became complete Avhen the right of the public became complete, and that was long after plaintiff became the owner. [Whyte v. Kansas City, supra.] If the damages had been assessed and the report of the commissioners had been confirmed before the sale, then defendant’s claim Avould have had more substantial basis. For it has been decided that a deed to the land Avould not assign the damages which had grown out of an injury to such land. [Hilton v. St. Louis, 99 Mo. 208; Losch Appeal, 109 Pa. St. 72.] The claim made that the attorney has a lien-on the amount of the damages assessed cannot be alloAved. Passing by Avithout deciding whether this is such character of case as would allow a lien, we find the record does not show that such attorney ever notified plaintiff that he had a contract for a certain per cent of what was recovered, as is required he should do by section 2, Laws 1901, p. 46. If it be conceded that plaintiff knew an attorney was employed in securing an allowance of damages, he could not have known, that he was to have .a part of such damages as his fee. Criticism is made of plaintiff asking in his motion to be made a party to the proceeding for grading the avenue. We do not regard this as of any substance. It is of no moment Avhat other thing the motion may "have asked, since it is certain that it was tried as a claim for the damages, as is contemplated by the stat ute. The judgment is affirmed. All concur.