Handlan v. Wycoff McMahon

*686 IIIGBEE, J. — These actions are to enjoin the'levying of executions on separate special judgments recovered by John F. McMahon and Robert Wycoff, respectively, oh tax bills for the construction of sewers in Kirkwood, St. Louis County. The cases were tried as one in the circuit court. Plaintiff appealed from a judgment dismissing the bills. For the history of these cases see Kirkwood v. Handlan, 182 Mo. App. 626, and State ex rel. Kirkwood v. Reynolds, 265 Mo. 88. The petition states in substance that appellant bought the property in 1886; that deeds were made to A. II. Handlan, Jr., which was his name-at the time; same were at once recorded; that he alone has been the owner ever since; that his father, bearing the same name, died in 1893, and appellant then ceased using the suffix, and his son in turn adopted it, that tax bills were issued against his property to contractors McMahon and Wycoff, suits brought by them and prosecuted as herein stated, and resulted in certiorari and quashal of judgment of the Court of Appeals, and issue of execution in McMahon Case and threat to issue in Wycoff Case; that such judgments, by reason of similarity of defendant’s name with his, were clouds on his title and prays that enforcement of execution by sale be enjoined. *687 The answer of McMahon admits the issue of the tax bills July 19, 1907, in each of which A. H. Handlan was named as owner; that suits were brought and writs served on A. H. Handlan, Jr., and Ella, his wife, in the city of St. Louis; that they did not answer or plead to the merits, but appeared solely for the purpose of contesting the jurisdiction of the court over their persons; denies that plaintiff has ever since 1886, or at any time, been the only record owner of said property; admits plaintiff was not made a defendant in said suits to enforce said tax bills; admits McMahon has caused executions in said causes to be issued, directed to the sheriff of St. Louis County, and that said sheriff, unless restrained, will execute said writs; denies that said tax bills, suits and judgments are clouds on plaintiffs’s title; denies that plaintiff has any title to said property or, if he has, said judgments and tax-bills are valid liens; avers that the record title to said property was vested in Alexander H. Handlan, Jr., at the time of the issuance of said tax bills; that at said time plaintiff was not known by that name, but his son was the only person identified, by that name; that said suits were brought in reliance on said records against plaintiff’s son and his wife, Ella, who appealed from the judgments rendered in said suits to the St. Louis Court of Appeals, where the judgment was reversed and the reversal was quashed by the Supreme Court; that said‘Handlan, Jr.; and his wife appeared in all of said proceedings by the attorney now representing plaintiff; that plaintiff had full knowledge at the time of the issuance of said tax bills and proceedings to enforce them and of all the steps .taken by the said Alexander H. Handlan, Jr., and stood silently by during all of said time and made no claim to said property until more than five years had elapsed after the issuance of said tax bills; that plaintiff, knowing his son had assumed the name of Alexander H. Handlan, Jr., and that plaintiff was no longer known by that name, failed and neglected to give any notice on or by the records of St.. Louis County that said property belonged ■ to him, and that by permitting said property to remain *688 in the name of Alexander H. Handlan, Jr., plaintiff; held ont and represented to the public that the title thereto was vested in his son; that defendants herein have acted in reliance upon said records and upon the implied representations of plaintiff thereby so made and have been put to large expense, all with plaintifffs knowledge, and plaintiff has stood by silently until he deemed said tax bills barred by limitation. Wherefore he is estopped, etc. The answer in the Wyeoff Case is the same, except (1) that the only defendant in his suits on the tax bills was Alexander H. Handlan; (2) that issue of execution by him on his tax-bill judgment was threatened and special plea of estoppel by alleged misrepresentation by appellant, that his son and not he was the owner of the property. The reply in each case was a denial of neU matter. In 1886, plaintiff bought three adjacent tracts in Kirkwood, aggregating about eighteen acres. His deeds were recorded at once. He was then known as Alexander II. Handlan, Jr., to distinguish him from his father who had the same name. The deeds were taken to him in that name. At that time, 1886, plaintiff had. a son having the same name, then thirteen years of age. When plaintiff’s father died in 1893, idaintiff dropped the suffix and his son assumed it and they have ever since been known by those names, respectively. Shortly after his father’s death, plaintiff notified the assessor to change his tax bills by dropping the suffix. Thereafter, sometimes his name appeared in the tax bills without, and sometimes with, the suffix. Plaintiff came to the city of St. Louis in 1865, and since that time has been the owner of the Handlan-Buek Manufacturing Company. His wife’s name is Mary, and his son’s wife’s name is Ella. They lived in the city of St. Louis, but in different residences.' The father has been president of the company, and since his son’s majority the latter has been secretary and general manager thereof. In 1904, plainIff’s health failed, so that since that time he has spent about ten months in each year traveling, his business being attended to by his son. *689 In 1907 and 1908, the city of Kirkwood ordained the construction of sewers, one to the south, the other to the north, of plaintiff’s property. The contract for one was awarded to McMahon, the other to Wycoff. Three special tax bills, aggregating $918.91, were .issued to McMahon as contractor, in which A. H. Handlan was named as owner. Wycoff’s bills also named A. H. Handlan as owner, and were afterwards amended by adding the name of Alexander H. Handlán, Jr., also as owner. Both contractors delayed suit on the tax bills until the five-year period had nearly expired. McMahon employed Judge Hodgdon to collect his tax bills, and suit was brought in the Circuit Court of St. Louis County against Alexander H. Handlan, Jr., and his wife, Ella. Wycoff retained Rodgers and Koerner, who sued the same parties in the same court on his tax bills. In each case the writs were served on plaintiff’s son and his wife by leaving copies at the residence of the plaintiff’s son in the city of St. Louis. It is admitted that plaintiff was not a party to nor served with process in either case. The only issue of fact is in the Wycoff Case. Mr. Rodgers, one of Wycoff’s attorneys, testified: “In the year 1912,1 wrote plaintiff relative to the payment of the tax bills, addressing him at his office by the name of A. H. Handlan, and, receiving no response, I called on him in person at his office and presented the tax. bills, demanding payment. I don’t know that I had any conversation with Handlan, Junior, but after I talked with his father and before bringing the suit, I took it up with him and he referred me to Mr. Loevy. He told me it could not be disposed of without bringing feuit. I then asked for a title examination and had the special tax-bills amended so as to put A. H. Handlan, Jr., in the bills and instituted the suit. I brought the suit against A. H. Handlan, Junior, because the title showed the property in his name, and A. H. Handlan had given me to understand that he was not interested in it and therefore I sued A. H. Handlan, Junior, without suing A. H. Handlan. A. H. Handlan, Jr., did not tell me he had nothing to do with it.” *690 Mr. Rodgers, on.cross-examination, said: “I don’t remember that lie used words that he did not own the property, but that is about the substance. Q. That answer don’t satisfy me. I want you to tell me what he said, word for word. It is the most ridiculous thing for Mr. Handlan to say that he did not own the property? A. As far as I ,can recollect, he used the words: ‘that he had nothing to do with it, and to see his son about it;’ and he talked some more about it on the subject and what more he said, I don’t remember.” Plaintiff testified that he did not remember seeing the work construction, but that he knew of it and declined to let the contractors cross his premises; that he did not know the contractors or who they were; that he knew McMahon by sight, and did business with him in the store; that he did not 'remember having any correspondence with anyone about the tax bills, or that anyone spoke to him about them; that whenever a tax bill was called to his attention, he OK’d it and it was paid by the store; that it cost him abouf $10,000 a year in taxes. His son-told him he was sued for these tax bills. “I said, fight it;” that he didn’t remember anything else he said about it. “I knew I was the owner of this property ' and that it stood in the name of Alexander II. Handlan, Junior, and that since my father’s death, my son was the only person identified by -that name ... I hate been away from home, maybe, ten months.in the year for the last ten or twelve years. My son said the suit was on and he took an appeal. I don’t remember that he told me what became of'the appeal. I think he told me that it went to the Supreme Court and we were defeated, and it was referred back to this court. My son told me that execution was issued. He said he would have to enjoin them selling that property. I must have been in town then. I don’t know about correspondence with Rodgers and Koerner about this tax bill. There may have been a letter or two, I don’t remember.” A carbon copy of a letter, dated November 23, 1912, addressed to A. H. Handlan, 212 North 3rd St., City, advising him that plaintiff’s attorneys have for collection *691 three special tax bills in the sum of $34.59, $51.20 and $61.12, issued January 16, 1908, against plaintiff’s property in Kirkwood for constructing sewers, etc., was read in evidence. Carbon copies of letters of December 4th and 16th, to the same address, were also read in evidence. Witness said he was seventy-five years of age, memory not as good as when he was younger; that if they were addressed to him he must have received them, but did not remember. Mr. Rodgers never called on him; that the first timé he met Mr. Rodgers was when he went over there to take, the deposition in these cases. “When I went in there Rodgers said I was ‘not the man I met' when I called on him.’ I never saw him before. The depositions were taken at his office.” A. H. Handlan, Jr., testified that the writs in these cases were left at his house; that he assumed the suffix, “Junior,” on the death of his grandfather in 1893, and his father quit using it then; that he never had any interest in the Kirkwood property, nor paid any taxes on it. On cross-examination: that he first heard of these tax bills when the writs were served; that he had no correspondence with anyone with regard to them before these suits; was not sure, didn’t remember; that he didn’t believe he reported the matter to his father, but turned them over to Mr. Loevy; that his father did not suggest that he call in Mr. Loevy; thought his father was out of town, and probably told him later on when he visited his father in the summer; that he didn’t remember what he said, but that. Mr. Loevy had been fighting sewer tax cases for his father for a number of years. “I was not interested so far as I could see. I turned it over to him to handle for myself. We merely raised the point that we had been served in the city of St. Louis. I told Mr. Rodgers that I did not own the property. I remember that because it seemed so ridiculous to serve it on me after I told him. I told him that when he was in the store. I don’t remember when that was; it was when he came in there to see about collecting or service, I forget now which. I know the case went to the Court' of Appeals and to the Supreme Court. *692 There has been no expense, except some miscellaneous bills that I paid, coprt expenses and printing, stenographers and traveling. I paid them. I did not want the judgment hanging over me. I had to do something. Never asked my father to reimburse me. Don’t remember writing Rodgers & Koerner any letters about the tax bills. I. We are unable to find any support for the contention that plaintiff had allowed the title to the property to stand in the name of his son and had so encouraged the contractors to expend their money in the construction of the sewers on the faith of the son’s ownership. It is alleged in the answers that the defendants acted in reliance upon the records and upon the implied representations of plaintiff thereby so made, but there is no proof that they ever knew who the owner was or that the record was examined until about the time the Wycoff suit was brought. As a matter of fact, the contractors are not supposed to have any knowledge of the names of the property owners; they are not concerned about that; they made the improvements on the faith of the ordinances and the lien the law gave them, after which they received tax bills which advised them of the name of the property owner. There is no evidence in the record to support this claim. The only claim in that connection is that when the lien of Wycoff’s tax bills had nearly expired by limitation, his attorneys wrote plaintiff three letters demanding that he pay the bills and that thereafter, when Mr. Rodgers, one of plaintiff’s attorneys, presented the bills for payment, plaintiff told him he had nothing to do with it and referred him to his son, which we will discuss later. The clear implication is that up to that time Wycoff had'understood that plaintiff was the owner, as Rodgers had written him demanding payment of the bills. Moreover, plaintiff testified he refused to allow the contractors to cross his property. That was probably during the time the work was being done. Respondents have not suggested how plaintiff *693 could have changed the record of his deeds, nor how he could have given notice that he had discontinued the use of the suffix and that his son had assumed it. Plaintiff’s deeds had been recorded twénty-one years before the first set of tax bills were issued. In view of this fact and the further fact that all the tax bills named A. H. Handlan as owner, the clear inference,is that the contractors were advised during the years they held the bills that plaintiff, in accordance with the general custom, had .discontinued the addition to his name. They had five years within which to learn the name of the owner. II. As previously stated, all the tax bijls named Alexander H. Handlan as owner; that the Wycoff bills were amended before suit by adding the name of Alexander H. Handlan, Jr., as owner; the MeMahon suits were against Alexander H. Handlan, Jr., as defendant, and the Wyeoff suits wer~ against him and Ella Handlan, his wife, as defendants. The writs were not served on plaintiff and he is admittedly not a party to the record. But it is claimed that plaintiff is estopped to question the contractor's liens by his conduct in the premises; that he suffered the title of record to the lots to remain in his son's nathe; permitted the contractors to expend `large sums of money in the construction of the sewers and, when suits were brought against his son to enforce the lien of the tax bills, he encouraged him to contest the action, thus assuming the role of owner, and he and his son did all in their power to continue this deception until the tax bills were barred by limitation, and that he is now estopped from asserting ownership; that he who comes into equity must conic with clean hands, and that a court of equity will not aid a party to commit a fraud. So far as the McMahon Case is concerned, there is not a word that I have been able to find in the record to sustain this contention. The work was done pursuant to the ordinances without consulting the owners of -the property and solely in reliance upon the lien of the *694 tax bills. It is admitted the ordinances were legal and authorized the construction of the sewers, and that the law g'ave the contractor a period of five years to enforce his liens by prosecuting actions against the owner of property within that period. Plaintiff never misled or deceived McMahon in any manner. He did not hold the property out as his son’s, except by permitting the record of his deed to remain unchanged. It has not been suggested how that could have been remedied. But the record told the truth. Plaintiff never told the officers of the city or McMahon that it was his son’s property. No one ever inquired of plaintiff about the ownership of the property. McMahon was not misled .by them as to the ownership. The tax bills distinctly and officially advised McMahon that. A. H. Handlan was the owner. Plaintiff sued the wrong man. That is all that can be said about it. It is true that when plaintiff’s son told his father he had been sued on the tax bills, the plaintiff told him to “fight it,” but. that suggestion or admonition was unknown to McMahon and could not and did not influence his action. Of course, the law will not. permit one to mislead another to his hurt with impunity. But that is not this case. McMahon does not claim that plaintiff violated any legal obligation to him in not advising him he had erred in suing his son. McMahon had appealed to Caesar, and plaintiff allowed him to proceed without suggestion or interference. III. But it is claimed that plaintiff aided and abetted his son in the litigation and is bound by the judgment as much as if he were a party to the record. The record fails to show that he aided or abetted his son. It shows that he told his son to fight it. That is the head and front of his offending. When the plea to the jurisdiction of the court was overruled, no further contest was made and judgment went, by default. But this court has held that if one, not a party to an action, participates in the trial thereof by employing an attorney to aid in the defense, he would not be bound by the result, not being a party to the ree *695 ord. In State ex rel. Kane v. Johnson, 123 Mo. 43, 55, Burgess, J., speaking for the court in Division Two, said: “The relator was not a party to the suit by Ransom against Johnson and Gilmer, nor could he have appealed from the judgment rendered therein. The mere fact that he employed attorneys to defend that suit, who participated in- its trial apd the examination of witnesses, ought not. to estop him from now asserting his rights, as he claims nothing by, through or under them. While relator might have become a party defendant to that suit, had he felt so inclined, he was under no obligations to do so. If the purpose of the suit was to pass upon his rights he should have been made a party. [Hope v. Mayor, 72 Ga. 246.] “Samis v. King, 40 Conn. 298, was a suit by injunction to restrain the payment of salary to policemen not legally appointed, brought against the clerk, auditor and treasurer of the city, but the city itself was not made a party defendant, and it was held that it was not enough that the city assumed the defense of the case through its attorney; that the city was a necessary party, and that so long as it did not. appear upon the record no decree coaid be passed- against it. [2 Spelling’s Extraordinary Relief, sec. 975.]” This is the uniform ruling in this State. [Womach v. St. Joseph, 201 Mo. 467, 479, citing the Kane Case; Perkins v. Goddin, 111 Mo. App. 429, 438, et seq., Tourville v. Wabash Ry. Co., 61 Mo. App. 527, 533; Elliott v. Penninger, 204 S. W. 188, 190; 23 Cyc. 1215, 1237.] In 21 Corpus Juris, 1064, par. 22, it. is said: “As a judgment, on the other hand, the record has the further effect of precluding a re-examination into the truth of the matters decided; but in this aspect it is as a rule binding only upon the parties to the proceeding and their privies.” *696 *695 IY. In the Wycoff Case the answer asserts that before suit was brought on the tax bills, plaintiff refused payment, and told Wycoff’s attorney that he did not own the property. At the trial Mr. Rodgers, testifying sever *696 al years after the alleged conversation, said: “I don’t remember that he used the words that he did not own the property, bnt that was the substance.” When asked to repeat the conversation word for word, the witness said:- “As far as I can recollect.he used the words ‘that he had nothing to do with it and to see his son about, it,’ and he talked some more about it on the subject and what more he said about it I don’t remember.” ■ Plaintiff distinctly denies ever having met Mr. Rodgers until he went to the latter’s office to have his deposition taken and that when he entered the room Mr. Rodgers said, in substance, “I was not the man he met when I called on him.” Plaintiff’s son says Mr. Rodgers came to the store and that he told Mr. Rodgers that he did not own the property. After that Mr. Rodgers had the.title examined. The record showed title, as we know, in A. IT. Handlan, Jr., ,and Mr. Rodgers had the tax bill amended by adding the name of A. H. Handlan, Jr., as owner, and brought suit against him, saying he relied on the record title as also on plaintiff’s statement. Plaintiff did not tell Mr. Rodgers he did not own the property, nor is Mr. Rodgers clear as to the language used by Mr. Handlan. What did he mean by saying. “I have nothing to do with it?” If Mr. Rodgers by that statement understood plaintiff to mean that he did not own the property, was he justified in that conclusion, and did he rely on it? If so, why did he have the title examined? He felt obliged to do this, had it examined, and then added the name of A. II. Handlan, Jr., as owner — the name of the record owner. In 21 Corpus Juris, 1129, par. 130, it is said: “If notwithstanding such representation or conduct he was still obliged to inquire for the existence of other facts and to rely upon them also to sustain the course of action adopted, he cannot claim that the conduct of the other party was the cause of his action and no estoppel will arise.” “Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to con *697 stitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel.” [Par. 139, p. 1139.] “Every fact essential to an estoppel must be clearly and satisfactorily proved. Estoppels cannot be based upon mere conjecture; and facts alleged to constitute them will not be taken by inference or intendment.” [Par. 269, p. 1252.] In Blodgett v. Perry, 97 Mo. 263, foot 273, Sherwood, J., said: “Furthermore, there must be a certainty about the alleged estoppel; the misrepresentation must be plain, not doubtful or matter of mere inference or opinion; for the courts will not suffer a man to be deprived of his property-or security where he had no intention to part with it. It is much the same thing to say that the representation or conduct is such as would naturally lead to the action taken; that is, it should be such as to justify a prudent man to act upon it. [Bigelow on Est. (3 Ed.) 490, 491.] Tested by these authorities, and the rule they enunciate, the plea was wholly worthless. “And the evidence to support the plea of estoppel is of a piece with it, since it is clear that Shumate was acting under and relying not on the act of the bank in having the sale made, but upon the advice of his counsel, F. M. Cockrell, that his purchase under the second execution would be good, as the sale made thereunder would bar and estop the bank from asserting title under any former deed to the latter.” It does not appear that Mr. Rodgers inquired as to the identity of A. H. Iiandlan, Jr., the grantee in the deed recorded twenty-six years before, he instituted suit on the tax bills, although he met both the plaintiff and his son and took the plaintiff’s deposition. It is not unusual that in the course of the years intervening since the *698 execution of the deed that the grantee should have discontinued the use of the suffix. The name of the owner designated, in the tax bills might have indicated as much. A little inquiry then would have cleared up the matter. When the evidence and circumstances are considered, we are clearly of the opinion that the case is lacking in the essential elements of an estoppel. The judgments are reversed and remanded with direction to enter judgment for the plaintiff in each case, according to the prayers of the petitions. Woodson, Graves and Elder, JJ., concur; James T. Blair, G. J., concurs in part and dissents in part in separate opinion, in which David E. Blair, J., concurs; Walker, J., dissents, in separate opinion.