City of Louisiana v. McAllister

REYBURN, J. This is an action by the city of Louisiana to recover the amount paid by it for construction of a granitoid sidewalk in front of a lot, whereon is erected a business house and also a dwelling, described ‘as the east 60 feet of lot number 588 in block numbered 74, in the original town of Louisiana. In August, 1900, the city council of plaintiff enacted an ordinance requiring the owners of land adjoining this and other lots to construct new pavements, and in compliance with the statutory requirement, it caused notice to be served on such owners. Defendant had been in possession of the above property for many years, occupying the dwelling and in charge of the store building. During that time he had made the statutory return for assessment purposes, verified by his affidavit, the property had been assessed to him and he had paid the taxes thereon, and accordingly notice concerning the sidewalk in front of this property was served upon him as its presumed owner. After such service or notice he appeared before the city council and asked to be relieved of putting down the walk at that time, which was refused, but he remained silent regarding the true ownership of the lot. The council then passed further ordinances for letting the contract for the reconstruction, and the successful contractor performed the work and was paid therefor by plaintiff. In the defense of defendant to the action of plaintiff upon the taxbill, his answer averred that he was an owner of only an undivided one-fourth interest and the reply reiterated that, if not sole owner, he was owner' of such undivided interest. The court found in favor of plaintiff but adjudged as owner of one-fourth interest, defendant should pay but the like proportion of the cost of reconstruction, and rendered a judgment accordingly, from which he has appealed. The plaintiff operates under a special charter, and the work herein was performed under sections 6261 and [156] 6262 of R. S. 1899, and no special taxbill, which by statutory enactment creates a presumptive case, was issued. The industry of counsel as well as the investigation of the court have failed to unearth any direct authority upon the defense herein interposed, and especially the decisions of the appellate courts of this State seem devoid of any such question. The proceedings are confessedly regular, so far as defendant is concerned, except that he was treated as sole owner, while in truth he was possessed of an undivided fractional interest; but to the extent of his ownership, his share of the lot was benefited by the reconstruction, and no good reason has been suggested why he should be heard to complain that his co-owners were not notified of the contemplated improvement, or that the proceedings were such an entirety that being void and ineffectual as to those owners not receiving statutory notice, they should be held invalid as to him. This general doctrine has obtained recognition in analogous proceedings. Elliott on Roads (2 Ed.), see. 318, intimates that “in such cases (i. e. failure to give notice to some of the property-owners) the better opinion is that the proceeding is void only as to those who have not been notified, but valid as to those who had notice. ’ ’ That a part owner may pay a special taxbill against the realty owned in common and maintain an action for contribution against his co-owners has been expressly held by this court. Granite Co. v. Taylor, 64 Mo. App. 37. Again, under the facts peculiar to this case, the defendant might have been well held estopped from setting up the defense of part ownership of the lot affected. His course of conduct not only by remaining mute before the city council regarding the divided ownership, but in the returns made by him to the assessor, the permitting the property to be assessed to him as such owner and payment of taxes thereon as such, though the latter were suffered without any such intent or purpose on his part, were all calculated to mislead and mis [157] inform plaintiff as to the title of the realty. The judgment of the court, threw on defendant no more than his proportion of the cost of the reconstruction and is affirmed. Bland, P. J., and Goode, J., concur.