Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co.

ALLEN, J. The appeal in this case was first submitted to this court at its October Term, 1912, and was here disposed of by the opinion of Honorable R. E. Rombauer,' special judge, which was adopted as the opinion of the court. Nortoni, J., however, dissented, in an opinion filed, and at his request the cause was certified to the Supreme Court (Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., et al., 168 Mo. App. 468, et seq 151 S. W. 479). When the cause came on for hearing in the Supreme Court, in banc, at its April Term, 1917, that court, by its majority opinion, held that inasmuch as the record of this court in the case showed that a motion for rehearing had been sustained, without a rehearing having been had, or resubmission of the cause, the judgment of this court entered therein was coram non judice and — 236 — void: and that since the, cause had not been finally determined by this court, the Supreme Court was without jurisdiction to proceed with it. It was accordingly remanded to this court. A rehearing has now been had before us, and the issue presented has been submitted for our determination. In the dissenting opinion of Nortoni, J., written when the case was formerly here (168 Mo. App. 483, et seq.), the facts are fully and separately stated, and we quote therefrom as follows: “This is a suit on a special tax bill issued in accordance with the charter provisions of the city of St. Louis, in compensation for street improvement. Plaintiff prevailed in the suit, and the court gave judgment establishing the lien of the tax bill against the lot of defendant Nina Realty Company in the amount of $1600.23, and interest thereon. “There are several defendants, and all'of them appeal from this judgment, but the Nina Realty Company alone, as owner of the lot on which the lien is enforced, is the substantial party in interest. The other defendants are >prior owners of the property and trustees in certain deeds of trust thereon, and it will be unnecessary to set them forth here, as they are without any beneficial interest in the property and the judgment is in no sense a personal one against them. At the time the judgment was entered, the lot on which the lien of the tax bill is sought to be established was owned by defendant Nina Realty Company, who suceeded to the title of the Parkview Realty & Improvement Company by virtue of the foreclosure of certain deeds of trust thereon, under which the Nina Realty Company purchased. “The lot of -ground involved is parcel of City Block No. 3878, fronting 405.17 feet on Union boulevard in the city of St. Louis. Plaintiff contractor reconstructed Union boulevard adjacent thereto, in accordance with an ordinance of and under a contract with the city of St. Louis, to that end. At the time of the' — 237 — improvement and the issue of the tax bill therefor, the lot was owned by the Parkview Realty & Improvement Company, a corporation, subject, however, to two deeds of trust then outstanding thereon. The first of these deeds of trust was executed on July 1, 1902 by the Parkview Realty & Improvement Company, owner, to the Lincoln Trust Company, trustee, to secure certain bonds. The second of such deeds of trust.was executed on August 1, 1902 to the Lincoln Trust Company, trustee, to secure certain other bonds, and both of such deeds were duly recorded about the time of their execution. While these deeds of trust were in force and the indebtedness evinced by the bonds therein described was subsisting and unpaid, the city provided by ordinance for the reconstruction of Union boulevard. This ordinance appears to have been passed in February, 1903, and the contract for such reconstruction work was duly let thereunder to plaintiff. Plaintiff performed the work in accordance with the ordinance and contract, and on July 1, 1905 the tax bill sued on was issued to him therefor. Thereafter, on July 19, 1905, notice of the issuance of the tax bill was duly served by the city marshal on the defendant Parkview Realty & Improvement Company, owner of the fee, but on no other defendant. As originally issued, the tax bill was payable in installments, but upon the failure of the owner of the property to pay the first installment when due, plaintiff exercised its option under the city charter and declared all installments thereof due and payable. Under the provisions of the charter, the first installment of the tax bill became due thirty days after notice thereof was served on the owner — that is, on August 19, 1905 — and subsequent installments became due immediately, likewise, because of the owner’s failure to pay the first installment. Thereafter, on June 20, 1907, and within two years from the maturity of • the tax bill August 19, 1905,'plaintiff instituted this suit; to the end of establishing and enforcing the lien thereof against defendant Parkview Realty & Improvement Company, — 238 — owner, and the trustee in the two deeds of trust, but omitted to make the beneficiaries in such deeds of trust parties thereto. Subsequently and after the expiration or more than two years from maturity of the tax bill, the property was sold at trustee’s sale under the two deeds of trust above mentioned, and the Nina Realty Company became the purchaser thereof. Such sales under the two deeds of trust were had/on November 2, 1908, and it was on that day the Nina Realty Company succeeded to the title of the prior owner, Parkview Realty & Improvement Company, through its purchase at the trustee’s sale. The Nina Realty Company, having thus become owner of the fee during the pendency of the suit, was made a party defendant thereto on November ¿0, 1908. By filing an amended petition on that date, plaintiff set forth the trustee’s sales and the fact that the Nina Realty Company had purchased the lot thereunder, made that company a defendant, and prayed that its interests as owner of the property should be subject to the lien of the tax bill in suit. Among other things, section 25, Art. 6, of the city charter provides the lien of any tax bill that is not entered satisfied within two years after its maturity, unless proceedings in law shall have been commenced to collect the same within that time and shall still be pending, shall be destroyed and of no effect against the land charged therewith. In view of this provision of the charter, the defendant Nina Realty Company interposed its answer to the effect that the lien of the tax bill had expired and was unenforceable against its interests in the property, for the reason that no suit had been instituted thereon within two years after maturity of the bill against the beneficiaries in the deed of trust under which it purchased. Though the Parkview Realty & Improvement Company, owner at the time, was sued within the two-year period, the case concedes that the beneficiaries in the two deeds of trust under which defendant Nina Realty Company purchased were not made parties thereto at the time. Indeed, the ¡first move made — 239 — toward bringing the interests of the beneficiaries before the court was the amended petition filed on November 20, 1908, adding the Nina Eealty Company, who succeeded to their rights, as a defendant, and this was long after the expiration of the two-year period prescribed in the charter, for that period commenced to run when the tax bill matured, on August 19, 1905, and terminated August 19, 1907. Notwithstanding all of this, the court gave judgment for plaintiff, establishing and enforcing the lien of the tax bill against the lot of ground described and interests of both the Parkview Eealty & Improvement Company and the Nina Eealty Company therein, as though it were unnecessary to include the beneficiaries in the deeds of trust in a suit for the enforcement of the tax bill within the two-year period prescribed, to charge them or their successors as owners of the property with the consequences of the lien.” There is but one question now in the case, which was the only question'before this court for determination when the former opinions were written; the Supreme Court in Morey Engineering Co., etc., v. St. Louis Artificial Ice Co., 242 Mo. 241, 146 S. W. 1142. having held that a special tax bill, though subsequent to a deed of trust in point of time, takes priority over the latter. The sole question for determination is whether or not the special tax. bill may be enforced against the interest of the Nina Eealty Company in the land, that company not having been made a party defendant within two years after the maturity of the bill. As to this question we have fully and carefully considered the able briefs and arguments of counsel pro and con, and have reached the conclusion that the dissenting opinion of Nortoni, J., supra, is a correct exposition of the law pertinent to the matter in hand. We therefore adopt it as follows: “Obviously, error lies in this judgment, for it involves and affirms the idea that one’s rights may be concluded as though a valid claim existed against him — 240 — or Ms property without having this day in court until long after such claim had become extinguished of its own force. By section 25, article VI of the charter, it is provided the tax bill shall become a lien upon the property charged therein and may be collected of the owner of the land and in the name of and by the contractor, as any other claim, in any court of competent jurisdiction. From this, it, appears that the lien is to be enforced against the land in the name of the owner thereof and, by subsequent provision of the same section, the lien of the tax bill, it is declared, ‘shall be destroyed and of no effect against the land charged therewith,’ unless proceedings shall have been commenced to collect the same within' two pears from the maturity of the bill and still be pending. Therefore, the proceedings must be commenced on the tax bill and against the owner of the land within such two-year period in order to preserve and establish the lien, or, otherwise, it is destroyed and extinguished perforce of the very words that gave it life. The authorities are abundant and of one accord to the effect that the suit must be instituted against the owner within the two-year period prescribed, as will appear by reference to the following cases: The ease of Eyermann v. Scollay, 16 Mo. App. 498, declares and affirms the rule under the St. Louis charter; and the following are to the same effect with respect to the charter of Kansas City; Smith v. Barrett, 41 Mo. App. 460; Jaicks v. Sullivan, 128 Mo. 177, 30 S. W. 890; Smith v. Boese, 39 Mo. App. 15; Forrey v. Holmes, 65 Mo. App. 114; Parker-Washington v. Kemper, 143 Mo. App. 244, 128 S. W. 271. For rulings to the same effect under the St. Joseph charter, see St. Joseph v. Baker, 86 Mo. App. 310; St. Joseph v. Baker, 113 Mo. App. 691, 88 S. W. 1122. The doctrine declared by all of the eases is, that the two-year period prescribed 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, there-,, fore, unless the suit is instituted against the owner — 241 — within that time, snch lien expires and it may not be revived and enforced against the interests of the owner in the land. [Smith v. Barrett, 41 Mo. App. 460.] “But it is said, thongh such be true, the present suit was instituted against the Parkview Realty & Improvement Company, owner, within the two-year period, and that will suffice to establish the lien against the derivative title of the Nina Realty Company, though the beneficiaries in the deeds of trust were not made parties; for, it is said, such beneficiaries possess nothing more, as against this plaintiff lienor, than the right to redeem therefrom. There can be no doubt that the lien of a subsequent special tax bill duly established prevails over the lien of a prior mortgage or deed of trust and becomes senior thereto. Such is the effect of the recent decision of the Supreme Court in Morey Engineering, etc., Co. v. St. Louis Artificial Ice, etc., Co., 242 Mo. 241, 146 S. W. 1142. This is undoubtedly the rule where both the owner of the land and the beneficiaries in the mortgage are made parties to the suit prior to the expiration of the lien, for, in the case last above cited, all parties in interest were before the court. See, also, to the same effect, Keating v. Craig, 73 Mo. 507, where both the owner and the mortgagee were parties.to the suit to enforce the lien of the tax bill. But though it be the rule that the lien of the subsequent tax bill becomes senior to the lien of the prior mortgage which is remitted to the position of a junior lien, when all parties in interest are before the court, it is the rule, too, that the rights of the beneficiaries in the mortgage are not concluded by the judgment unless they are made parties to the suit. For a judgment to this effect on a tax bill, see Forrey, v. Holmes, 65 Mo. App., 114. As to such beneficiaries who have been omitted from the suit to foreclose the State’s lien for taxes, the Supreme Court has, in a number of cases, affirmed that, though title passed by the execution sale, their right to redeem was still available, as will appear by reference to Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kriedler, 84 — 242 — Mo. 472; Corrigan v. Bell, 73 Mo. 53; Allen v. McCabe, 93 Mo. 138, 6 S. W. 62. “Considering the thought reflected throughout all of these authorities, it is obvious that the beneficiary in the deed of. trust or mortgage is required to be made a party to the suit, for the reason that he is an owner, within the sense of that term as employed in the charter provision and as employed in the statute with respect to general taxes levied in behalf of the state. Some of the cases put the rule expressly on the ground that the beneficiary is an owner. [See Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472.] Furthermore, the Supreme Court, in the recent case of Morey Engineering, etc., Co. v. St. Louis Artificial Ice, etc., Co., 242 Mo. 241, 146 S. W. 1142, in construing the St. Louis charter, declared the beneficiary in the deed of trust an owner within the sense of that term, to the end of raising the lien of the tax bill from the position of the junior, where it otherwise lay, to that of senior lien over a mortgage prior thereto in point of time. To the end of evincing that the charter contemplated the lien of the tax bill should prevail over the rights of a prior mortgage, the Supreme Court quoted from section 25 of the charter as follows; ‘Said tax bills shall be and become a lien upon the property charged therewith, and may be collected of the owner of the land and in the name of and by the contractor as any other claim in any court of competent jurisdiction.’. Touching the words thus quoted, the court says, ‘Construed in the light of the case last cited, this means that the tax is a lien upon the property, to be enforced by a proceeding in rem against the property. And, as ruled above, the word ‘owner’ includes incumbrances.’ If, then, the beneficiary in the deed of trust is to be regarded as an owner of the property for the purpose of postponing the lien of his prior mortgage to the lien of the subsequent tax bill, it would seem that he should be regarded as an owner in whose favor the requirement to institute suit within the two-year period, in order to preserve the liens, ob — 243 — tains. On a like question the Kansas City Court of 'Appeals, under the charter of that city, declared that, unless the beneficiary in the mortgage was made a party to the suit within the two-year period, the. lien as to his interests amounted to naught, or, in other words, had expired. [See Forrey v. Holmes, 65 Mo. App. 114.] “But it is argued that the junior lienor is never a necessary party to a proceeding for the enforcement of the senior lien and that a valid judgment may be had against the res, enforcing the lien, though the junior lienor is not a party, but subject, however, to his right to redeem. The argument is obviously sound in those cases where the lien is a continuing one and so comprehensive by the terms of the statutes as to include all interest in the land in whosoever name it may be. The eases of Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Allen v. McCabe, 93 Mo. 138, 6 S. W. 62, and numerous other authorities declare the rule where the lien of the State for taxes "has been enforced. In the argument advancing this proposition it is said the junior lienor, the holder of the mortgage here, at best has a lien only on the equity of redemption, or a right to redeem from the prior lien of the tax bill, and that this continues and may be availed of to the very day of sale under the tax judgment; that though defendant Nina Realty Company was not made a party until after the two years had expired, and the beneficiaries in the mortgages, to whose rights it succeeded, were never made parties at all, its right to redeem is still open and this defendant has been given its day in court with respect thereto, for it may redeem even after the judgment is affirmed and at any time before the property is sold in execution thereunder. Obviously this argument assumes a subsisting lien against the interests of the Nina Realty Company from which a redemption may be made. If the lien continued to exist as in the tax cases, and obtained upon the realty without regard to the ownership, the argument would be persuasive, indeed. But here, the lien of the — 244 — tax bill expired before it was ever asserted, as the charter requires, against the beneficiaries in the mortgages or the Nina Realty Company, which succeeded to their rights, and, furthermore, the lien of the tax bill does not obtain against the land without regard to the ownership. “The general taxes in favor of the State are declared by section 11385, Revised Statutes 1909, to obtain against the land ‘no matter who is the owner nor in whose name it was assessed.’ And the lien with respect to such taxes obtains accordingly there- — -that is, on every interest in the land. It is true that the owner of the land must be made a party to the tax suit for the purpose of enforcing the lien of the State, to the end of conferring the jurisdiction over the res, but the tax itself is affixed against, the land as a matter of law without regard to the owner thereof. Such is not true as to a tax bill representing special assessments as for benefits because of improvements made, for unless the improvements are made, no tax can obtain, and that such improvements were made is a fact to be proved as a basis for the lien. Special tax bills become a lien upon the property and may be collected of the owner of the land, it is true; but, to-- this end, proof is required against the interest of the owner as a condition precedent to affixing the lien upon his interest in the land. This proof, according to section 25 of the charger, may be made by the tax bill itself, which is sufficient prima - facie evidence * ‘ of the liability of the person therein named as the owner of the land charged with such bill to pay the same.’ The tax bill here involved names the Parkview Realty & Improvement Company as the owner of the land and in no way refers to the beneficiaries in the mortgages. Obviously, then, the bill itself is sufficient to evince the right of a lien, against only the Parkview Realty & Improvement Company. In the sense of the charter, as before pointed out, the beneficiaries in the mortgages are regarded as owners of the property, too, and it is essential, when others than — 245 — those named in the tax bill appear to be owners, that proof aliunde the bill be made, in order to affect the rights of snch owners not named therein. [See Farrell v. Rammelkamp, 64 Mo. App. 425; McCormick v. Clopton, 150 Mo. App. 129, 130 S. W. 122.] “That the tax bill is not prima-facie evidence of the right to the lien against a mortgagee not named therein has been expressly decided, as will appear by reference to Kansas City to the nse, etc. v. American Surety Co., 71 Mo. App. 315. Obviously the charter intends that every person interested as owner in the property sought to be subjected to the lien of the tax bill shall have a right to defend against the assertion of such ■ lien, and most assuredly the assertion of the lien should be made while the right to it continues to exist and not after it dies, for then defense would be unnecessary. From these considerations alone, it would seem that the rule which prevails as to the right of the junior incumbrancer to redeem from the general tax lien and, except for that, a judgment to which he is not a party concludes him, is without force here, for unless this lien is established by evidence aliunde the tax bill, no lien whatever obtains against the rights of such owner as the Nina Realty Company, whereas in the case of the lien for general taxes it comprehends the whole estate and every interest in the land, without regard to the matter of ownership whatever and obtains against both prior and subsequent incumbrancers at all hazards. In the ease of the special tax bill, the lien obtains against the owners and their interests in the land only by virtue of its being established against their interest in the land by proof, and not because it comprehends such interests whether or no, as a matter of law. Unless the lien is asserted within the two-year period and subsequently established, there is naught from which redemption should be made. “It seems to me the opinion of the court in this case overlooks the fact that there is no lien here until established, and treats the matter as though there were — 246 — a subsisting lien as in the case of general taxes or in the ease of a mortgage, both of which liens obtain without any proof whatever. In this case, instead of there being a lien upon the land, there exists only a right to establish a lien which attaches provided competent proof is made against the owner within two years. If the mortgagee is an owner, as declared in Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 146 S. W. 1142, then such mortgagee should be sued within the two years limitation prescribed by the charter in favor of an owner.” To the foregoing we desire merely to add the • following observations: Though we have great respect for the views of the learned special judge, formerly a member of this court, who wrote the majority opinion when the case was previously here, it is our judgment, upon mature reflection, that that opinion fails to follow the ruling of the Supreme Court in the Morey case, supra, in holding that the word “owner,” as used in the (then) charter of the city of St. Ijouís, was to he taken as used in its restricted sense, meaning only the legal owner, and that it did not include any other person beneficially interested in the property. In the Morey case the Supreme Court appears to have distinctly held to the contrary, viz., that the word “owner” in the charter is to be taken in its broad sense, and that it includes a' cestui que trust in a deed of trust, or other holder of an incumbrance on the land. This appears more than once throughout the majority opinion in that case; and finally it is said (1. c. 259): “And, as ruled above, the word ‘owner’ includes encumbrancers.” We may also remark that what was said in the former majority opinion of this court herein, respecting the difficulties attendant upon’ the enforcement of a special tax bill if the word “owner” in the charter is to be taken other than in its restricted sense, supra, appears to wholly fail to reckon with the fact that our statute, section 1776, Revised Statutes 1909, makes express — 247 — provision for service on unknown parties by publication in an action of this character. We are much strengthened in our view of the case, supra, by the recent decision of our Supreme Court in Riverside Lumber Co. v. Schafer, 251. Mo. 539, 158 S. W. 340, decided while the case now before us was pending in the Supreme Court on certification as stated above. That was a suit to enjoin the sale of real property under “a school fund mortgage.” The plaintiff therein, the Riverside Lumber Company, had filed a mechanic’s lien against the property, and since the lien dated from the commencement of the work on the building, or the furnishing of the materials therefor, which was prior to the execution and recording of the mortgage, the former was entitled to priority in law over the latter. The plaintiff, however, had failed to make the mortgagee a party to the suit to establish the mechanic’s lien, within ninety days from the filing of the lien account. It was held that by the failure to make the mortgagee a party within ninety days the priority of the mechanic’s lien over the school mortgage was lost; and that the judgment establishing the lien in no wise affected the interest of the mortgage. In the course of the opinion the learned author thereof said: “And it has also been held that if the owner of the property, for any reason, is not made a party to the suit, within said ninety days, no lien can be established against his interest therein. That being true, then by parity of reasoning, I am unable to see how it can be logically said that the interest of any other person in the property can be tried and adjudicated, if the suit is not begun against him within said ninety days. I can see no reason for differentiating the interest of the landowner and that of the mortgagee in proceedings to enforce mechanic’s liens against the property in which both are interested...” [See Riverside Lumber Co. v. Schafer, supra, l. c. 551, 552]. It is argued that the Riverside Lumber Company case does not here apply, for the reason that it was — 248 — one involving a mechanic’s lien, while we are here concerned with the lien of a special tax bill. It is unnecessary to set out at length the argument advanced in this connection. So far as concerns the particular question before us the principle involved is, in our judgment, precisely the same whether the proceeding be one to enforce a mechanic’s lien or a special tax bill. In either case the lien (whatever may be its precise character up to'that time) ceases to have any existence after the lapse of a certain period of time, unless proceedings are instituted to establish or enforce it. In this respect both tax bills and mechanic’s liens differ from mortgages and deeds of trust which create liens without the aid of any suit to establish or •enforce them, and which continue as liens until satisfied or until the holder has lost his right by limitation. In the case either of a tax bill or a mechanic’s lien it is purely optional with the holder to take steps within the requisite time, to impose the lien 'against the interest of all parties in the land, or to proceed alone against the interest of the holder of the equity of redemption waiving his right to bring in parties otherwise beneficially interested in the property. In this connection see Riverside Lumber C. v. Schafer, supra, l. c. 552. It is true that as to mechanic’s liens the statute provides that all parties interested in the property may be made parties “but such as are not made parties shall not be bound by any such proceedings;” but this is the effect of the provisions of the charter of the city of St. Louis then in force (See Perkinson v. Meredith, 158 Mo. 457, l. c. 464, 59 S. W. 1099), and is merely in accord with the fundamental principle that the interest of one in land cannot be divested by a proceeding of which he has neither actual nor constructive notice. And there are pointed reasons, we think, why a cestui que trust in a deed of trust should be made-a party, within the time which by law constitutes the — 249 — period of the existence of the lien, if his interest is to he affected hy the proceeding. He has more than a mere right to redeem against the tax bill. He is entitled, in onr view, to question the validity of the tax bill, or the proceedings leading up thereto, or the amount thereof, and to be accorded the right to do so while the evidence touching the matter is available and fresh. The cestui que trust may be, and often is, more vitally interested in asserting such defenses than the owner of the naked legal title whose, equity of redemption may perhaps be worthless. In the recent case of Utah Implement-Vehicle Co. v. Bowman, 209 Fed. 942, a case involving the question decided in the Riverside Lumber Company case, supra, and which is in line with the latter case, it is said:. “Any dispute touching the amount of the claim, the date of its origin or the time to which the lien relates, is thus to be conclusively settled while the facts are still fresh and the witnesses are available. Now it cannot be doubted that it is often quite as important to an incumbrancer, who is a stranger to the transactions upon which the claim of the lien is based, to have the benefit of this protection, as to the owner himself, who is in a better position to know the facts and to-preserve the evidence thereof. . . . “The ,argument that the limitation does not apply to a mortgage, because the validity and amount of mechanic’s lien may be established in a suit between the claimant and the owner of the property alone, and that the only issue in which the mortgagee is interested, namely, the date or relative dignity of the lien, may be tried out in a subsequent suit to redeem in so far as it has any fórce at all, rests upon an erroneous assumption, which is that the mortgagee has no right to question the amount or validity of the claim of lien. These are issues which the incumbrancer, equally with the owner, may raise, and for that purpose the mortgagee is entitled to his day in court. If, for instance, a lien were asserted for the value of materials which — 250 — was never furnished for use in a structure covered by the mortgage, it must be clear that the mortgagee may, by showing the fact, defeat the lien or reduce the amount thereof.” This reasoning, we think, is equally applicable to the situation presented by the record before us. From the views expressed above it follows that the interest of the cestui que trustent, who were never made parties remained unaffected by the proceeding herein. That interest has now passed to the Nina Realty Company, which corporation has acquired the fee simple title to the land through the foreclosure of the deed of trust. That defendant was not made a party to the suit until more than two years after the maturity of the tax bill, and hence the land in its hands is not chargeable with the lien thereof. The judgment must accordingly be reversed, and it is so ordered, Becker, J., concurs. Reynolds, P. J., concurs in the result, on the authority of the decision of the Supreme Court in Riverside Lumber Company v. Schafer, supra, a decision not before us when the former opinion was written.