Opinion of the Court by

This was an action of covenant brought by the Mayor, Aldermen and citizens of the city of St. Louis on an indenture of lease. The declaration was as follows: The city of St. Louis, successors of the Mayor, Aldermen and citizens of the city of St. Louis, complain of George Morton of a breach of covenant, for that where as heretofore, to wit, on &c., at &c., by a certain indenture made between the parties aforesaid, (proferí of which is made,) the said Mayor, &.c., did demise, grant, and to farm let to the defendant, his executors and administrators and assigns, a certain lot with its.appux-tenances situate in the St. Louis common, to have and to hold the said lot and messuage upon certain conditions, among which was that the defendant should yield and pay for the premises demised, as a yearly rent, unto the May- or, &c., and successors, the interest of five per cent a year on the amount bid for said lot, being the sum of $525 93, at the expiration of one year from the date of said indenture, and the like sum at the expiration of every year thereafter; and secondly, that at the end of fifty years from the day of sale being the 12th March 188G, and every fifty years thereafter and after assessment made by the public assessor agreeably to the act of the General Assembly of the State of Missouri passed 18th March, 1835, entitled “an act to authorize the sale of the St. Louis common” the said defendant should pay five per cent a year upon such assessed value as a yearly rent; and thirdly, that should the interest aforesaid remain unpaid for six months after due, the Mayor &c., might annul the sale, and proceed to sell again according to the *480act of Assembly aforesaid; and fourthly, that after the expiration of ton years from the .day of sale, the said defendant might pay the sum of ten thousand five hundred and eighteen dollars and sixty cents, being the amount bid for the lot, and receive a deed in fee simple with special warranty only against the inhabitants of St. Louis and all persons claiming under them; and the said defendant did covenant for himself, executors, <&c., should well and truly pay or cause to be paid to the said Mayor, &c., the yearly rent of $525 93, at the several times appointed in said indenture— by virtue of which demise defendant entered. Breach, that on the 13th March, 1838, five hundred and twenty-five dollars and nine Ly-three cents became due and was unpaid.— Defendant pleaded seven pleas. 1. Non est factum. 2-'Deed obtained by fraud. 3. That the demised premises formed a part of a larger tract called the St. Louis Common, which was vested in the inhabitants of that part of the city which was limited on the 13th June, 1812; that by an act of the General Assembly of the State of Missouri, passed March 18,1835, the sale of the said common was authorized on certain conditions and among those conditions were the following: That the Mayor and Aldermen of the city^of St. Louis should cause the said commons to be surveyed and laid off into lots of not less than one acre, nor more than forty, and that they should lay oiF such roads, lanes, streets, &c.. as they should deem necessary and should cause a plat of said survey to be made out and filed in the office of the Recorder of St. Louis county, and that they should give notice of the time, place and terms of sale for four weeks in all the newspapers of the city of St. Ixrais — that defendant relying on the pretences of the plaintiffs, that all these things had been done, purchased at public auction the demised premises, and that in fact the said Mayor and Aldermen did not cause a plat to be made and.recorded, and did not follow the other requisites of the statute, and therefore the deed was void in law.

The fourth plea alleged that plaintiffs sold the lot to defendant without having first obtained the consent of a majority of the owners of lots and parts of lots within the limits *481of the town of St. Louis as it was limited on the 13th of June 1812.

*481Fifth plea averred that plaintiff sold the lot to defendant without having previously had a plat of the survey of the said common recorded, &c.

Sixth plea, that the Mayor and Aldermen did not make to defendant a deed for the lot purchased by him according to the form of the statute.

Seventh jdea, that the defendant did not enter by virtue of the demise to him, &c.

On the first and second pleas issue was taken, and plaintiffs demurred to the remaining pleas. Demurrer was over ruled, and judgment given for defendant on the demurrer. The whole of these pleas, if I understand them rightly, amount to averments that certain pre-requisites of the stat-tute authorizing the sale of the St. Louis common have not been complied with. No oyer of the indenture was craved nor is the indenture set out, except as it appears in the declaration. No averment in any plea is made, that this indenture was made in compliance with the act of the General Assembly of 1835, nor does so much of the indenture as is set out in the declaration profess to be made under any power given by that act. The Mayor, Alderman and citizens of the city of St. Louis assumed to he proprietors, and although it is not averred that the commons lie within . „ , „ limits of the city oi St. Louis, neither can it be inferred from any thing in the deed, that they were without the its of said city.

These pleas amount then to a denial of the title of the plaintiff, and are therefore inadmissible upon well 1 r ed rules of law. If the pleas had averred that the plaintiffs, were agents, or trustees, and derived all their power over the demised premises from an act of the legislature, and the act of the legislature did not give them any power to make such a deed as was declared on, or was wholly null and void, I am not prepared to say that such a defence would come within the reason of the doctrine of estoppel. This all that was decided in the case of Mytton v Gilbert (2 term R. 169 172) which has been so much relied on at the bar. I *482regard the provisions in the act of 1835 as directory, and not conditions precedent to the exercise of the power. If the corporation of St. Louis made the,deed to defendant under that act, he shall not and should not be allowed to deny that the prepatory steps required by the act were com-with. Pie may allege that the corporation of St. Louis derived no power to sell or lease under that or any other act’ or ^at act was unconstitutional, and in that way bring himself within the doctrine in Mytton v Gilbert.

But the defendants pleas avoid the question of power, an(| gee]> |0 ta]ie advantage of alleged omissions on the part ml ° , , , , , o i of the plamtifis. They are estopped by their deed from cto-*DS this, especially as no complaint is made'of any eviction or disturbance.

ah the court are of opinion that thes please are bad, and that the demurrer should have been sustained. Judgment reversed.