Smith v. Barrett

Gill, J. This is an action brought to foreclose the lien of a special tax bill for paving Grand avenue in Kansas City. The tax bill was issued on the twenty-ninth day ’ of December, 1884. Prior to this date, to-wit, on January 4, 1883, Maggie Barrett, the former owner, had conveyed the lot charged by the tax bill to M. S. C. Donnell, but said deed was not recorded till August 10, 1885. Forty-seven days after the deed to Donnell was recorded, and on September 26, 1885, the plaintiffs commenced this suit against the said Maggie Barrett and her husband. Donnell, though then the record owner, was not sued at that time; but, subsequently, on April 13, 1887, plaintiffs amended their petition, joining Donnell as a codefendant with the Barretts. He was brought in by summons, and in his answer .pleaded the expiration of two years from the issue of the tax bill as a bar to the action. Defendants Barrett simply entered a disclaimer as to the real estate charged and asked to be dismissed with their costs. The circuit court, trying the cause, gave judgment for defendants, and plaintiffs have appealed. I. The points at issue, between these litigants, are these: First. Was this action (commenced in September, 1885) properly brought against Barrett, who was the record owner when the tax bill was issued, or should it not rather have been brought against Donnell, who was the record owner at-the institution 'of the suit ? Second. Admitting Donnell to have been the necessary party defendant in the first instance, was the action saved by bringing him in as a codefendant with — 464 — Barrett by an amended petition and summons on April 13, 1887, which was more than two years after the tax bill was issued % By reading ■ the foregoing statement, it will be observed that when the tax bill was issued the record of conveyances for Jackson county showed title of the lot to be in Barrett, but when the suit was brought the same record of conveyances gave the information that Donnell was the owner, by deed from Barrett executed prior to the issue of the tax bill. . This tax bill was issued in pursuance of article 8, Kansas City charter (Laws of 1875, p. 250, et seq.), wherein, under certain conditions, it provided that a street may be paved, and the costs thereof charged to abutting property. Section 4 of this article prescribes how such tax bills may be enforced by suit. We quote briefly from this section: “Sec. 4. Every such tax bill shall be a lien on the property therein described, against which the same may be issued” (and from the date of issue) ‘ ‘ and such lien shall continue for two years thereafter, but no longer, unless suit be brought to collect the same within two years from the issue thereof, in which case the lien shall continue until the determination of the legal proceedings to collect the same.” * * * Then, after providing that suit may be brought to enforce such lien in any court of competent jurisdiction, the section continues: “No such tax bill need give the name of any party owning or interested in the land charged and bound by the lien, and, before suit, the owner of any part or severalty, or undivided interest in any land charged by any tax bill, may pay his share separately, in which case his interest shall not be further liable in case of suit; all such, or any of the owners of the land charged, or any estate or interest therein, may be made defendants, but only the right, title, interest and estate of the parties, made defendants in any suit, shall be affected or bound thereby, or by the proceedings therein. In case any owner of the ground — 465 — or of any interest therein is unknown, or a non-resident, ’ ’ etc., provision is made for publication, etc. Then, in prescribing nature of petition, etc., the section continues : “It shall be sufficient for the plaintiff to plead ‘ the issuing tax bill, assignment thereof (if assigned),’ and allege that the party or parties made defendants own or claim to own the land charged, or some estate or interest therein as the case may be.” The statute then declares the judgment, and execution thereon, shall be special — a lien and charge on the land to be enforced and executed as in other proceedings on special executions from the circuit court, and then that “any such special-judgment shall bind all the right, title, interest and estate in the land that defendants, and each of them, own at the time of the lien of the tax bill commenced, or acquired afterwards, and a sale on execution thereon shall vest all of such right, title, interest and estate in the purchaser, but parties interested in the land, not made defendants, shall not be affected thereby, and if they claim through or under any parties defendant, prior to'suit brought, may redeem from the purchaser, or otherwise assert their rights, according to equity and good conscience.” Now, the pivotal question is, against whom, under the terms of this statute, should plaintiffs have proceeded to enforce this tax bill against the lot in question? Should they have sued Barrett, the record owner when the bill was issued, or Donnell, the record owner when the action was commenced ? Both sides concede that by owner, as mentioned in the statute, is meant that person whom the public records show to be vested with the title — and this, in the absence of knowledge to the contrary, is the well-settled law of this state, in actions of this nature. Vance v. Corrigan, 78 Mo. 94, and numerous other cases following this; 85 Mo. 169; 90 Mo. 676; 96 Mo. 546; 98 Mo. 567. After much consideration and reflection over the terms of this statute. — 466 — we yield to the contention, of defendants’ counsel, and hold that the action should have been brought against Donnell, who was the record owner at the commencement of this action. We are of the opinion that this rule better conforms to the words and spirit of the act, better consists with reason and justice, than as contended for by plaintiffs’ able counsel. As an original proposition, and one of first impression, reason and fair dealing would suggest that if A.’s land (which he-now owns) is to be charged -absolutely with the payment of a sum of money — if a proceeding is to be carried through the courts, resulting in an incontestible judgment against his property — it would seem, I say, in all fairness that he, above all others, should have notice and the right to defend. “The chief object in having the owner brought in would seem to be to enable him to contest the validity of the proceedings as a charge on his property.” 78 Mo. 96. That portion of the section, too, quoted above (and which relates to -the contents of the petition to be filed) quite obviously looks to the owner when suit is brought as the necessary party defendant. It reads that the petition should “allege that the party or parties made defendants own'or claim to own the land charged,” etc. “Own,” when? The answer is, “Now” — own now. Not that when the tax MU was issued defendants owned, but the petition must allege who are the owners now— at the institution of the suit. So again, referring to the foregoing section 4, the special judgment rendered in said suit shall bind all the interest that these defendants may have owned at the issue of the tax bills, or which they may have afterwards acquired. “Defendants” here mentioned, of necessity, means those interested in the property at the institution of the suit, and all the interest they then have, whether owned at the date of the tax bill or since acquired, is bound by the judgment. If the status of the title at the issue of the tax bill fixes the liability, — 467 — why mention title “acquired afterwards?” Suits against the “owner or owners of property” to enforce payment of general real-estate taxes, under section 6887, Revised Statutes, 1879, are uniformly held properly brought against the owner, or owners, as shown at the time by the registry of deeds. 96 Mo. 546, and cases cited. We are further strengthened in the conviction that the legislature did not intend the law as contended for by plaintiff’s counsel, by reference to article 7 of the same charter act, which has to do with the opening streets and condemning private property therefor. There it was thought best to proceed against the owners who appeared such at the date of the passage of the ordinance, and the same act so expressly provides, and in these words: “It shall be sufficient to bring in the owners of property who may be such at the date of the passage of the ordinance providing for the improvement, and all parties claiming or holding through or under such owners, or any of them, shall be bound by the proceedings without being brought in.” The existence of such a provision in proceedings to open streets, etc., and the absence thereof in the article relating to enforcement of liens for paving streets, tends to show that a different rule was intended. II. It being determined, then, that Barrett was not the owner contemplated by the charter, and against whom suit should have been commenced, but that Donnell was the proper party defendant, as he was then the record owner, the remaining question is, was the lien preserved and the right of action saved by bringing Donnell in as defendant on April 13, 1887. We have no hesitancy in answering this question in the negative. It is provided by section 4 of the charter, as quoted in this opinion, that every such tax bill shall be a lien from the date of its issue, “and such lien shall continue for two years thereafter, hut no longer, unless suit be brought to collect the same within two years — 468 — from the issue thereof,” etc. This suit was not brought against the owner, Donnell, as the statute directed, until more than two years after the issue of the tax bill. Said bill was issued in December, 1884, while Donnell was sued in April, 1887. The action pretended to be brought against Mrs. Barrett and her husband in September, 1885, was as if brought against any other party who may never have been in any manner interested in the property. The suit contemplated by the charter was an indispensable prerequisite to perpetuate the lien, and extend it beyond the two years’ limitation. As said by the St. Louis Court of Appeals in a similar case: “The proceeding is special, and the person who claims under it must bring himself within its special provisions.” The two years, after which the lien is to terminate, is not a mere statute of repose to bar actions, but is rather a limit to the existence of the lien, and the burden is on the plaintiff to show that he has complied with the conditions upon which the statute makes the continued existence of the lien depend. 6 Mo. App. 26. There was no suit brought within two years — the proceeding against the Barretts was' a mere nullity. No suit against the owner being brought within the two years, the lien was gone. Fary v. Boeckler, 6 Mo. App. 24; Dunphy v. Riddle, 86 Ill. 22; 86 Ill. 437; 95 Ill. 580; 96 Ill. 146. The right to amend pleadings is not properly a matter of discussion here. Plaintiffs claim to have had a special tax lien against defendant Donnell’s real estate, by virtue of the tax bill issued in December, 1884. It was a creature of statute creation. The law of its existence limited its life to two years, unless suit was commenced against Donnell within said two years. This was not done, and the lien is' now dead, without hope of revival. Judgment affirmed. All concur.