Pleadwell et al. v. Missouri Glass Co.

• Citation: 151 Mo. App. 51,131 S.W. 941
• Parties: PLEADWELL et al. v. MISSOURI GLASS CO.
• Decision Date: 10 November 1910
• Court: Court of Appeal of Missouri (US)

131 S.W. 941

151 Mo. App. 51

PLEADWELL et al. v. MISSOURI GLASS CO.

Springfield Court of Appeals. Missouri.

November 10, 1910.

Rehearing Denied December 2, 1910.

1. EVIDENCE (§ 461)—PABor, EVIDENCE—COVENANTS—SPECIAL TAX—ADMISSIBILITY.

As the term "special tax" has a well-defined meaning, oral testimony as to its meaning in a lessee's covenant to pay all special taxes to show that it was intended to cover a benefit assessment for the widening of a street is inadmissible.

2. APPEAL AND ERROR (§ 1052)—REVIEW—HARMLESS ERROR.

Where, in an action by a lessor to recover from his lessee the amount paid as a street widening assessment on the leased property, the court properly found as a matter of law that a covenant in the lease, that the lessee should pay all special taxes levied against the property covered a benefit assessment for the widening of a street, the admission of oral testimony to prove that the term "special tax" covered such assessment was a harmless error.

3. MUNICIPAL CORPORATIONS (§ 416) — SPECIAL TAX—NATURE OF ASSESSMENT AS A TAX.

Under the law of the state and the charter of St. Louis, the city may levy a special assessment upon the property benefited, for the purpose of paying a part of the cost of widening a street, as an exercise of its taxing power.

4. MUNICIPAL CORPORATIONS (§ 294) — PROCEEDINGS—NOTICE—PERSONS ENTITLED.

In proceedings for' the widening of a street, notice of the proceedings need not be given to either the owner or lessee of property no part of which is sought to be taken.

5. MUNICIPAL CORPORATIONS (§ 450)—STREET WIDENING — ASSESSMENT DISTRICT—FORMATION—NOTICE.

While a lessee of property, who has covenanted to pay all special taxes thereon, is entitled to notice of the formation of a benefit district, including such property, in which assessments are to be levied to pay for a street widening, personal notice is not required; but the publication of notice to owners of property in the district, with a designation of the district sufficient to notify the parties interested that their property is in the district, and an opportunity to them to be heard before final action is sufficient, nor need such notice name either the owner or the lessee.

6. MUNICIPAL CORPORATIONS (§§ 384, 450)— SPECIAL ASSESSMENT — COLLECTION — ORDNANCE—CONSTRUCTION.

The ordinance providing that commissioners appointed in street opening proceedings shall assess damages for the improvement, and form a benefit district, applies also to a proceeding to widen a street, as well as to open one.

7. LANDLORD AND TENANT (§ 148) — COVENANTS BY LESSEE — SPECIAL TAXES — PAYMENT BY LANDLORD—VOLUNTARY PAYMENT.

The circuit court's confirmation of the report of commissioners in a street widening proceeding is not a final judgment, as to the collection of the assessment levied on the property in the benefit, so as to preclude the owners of property, who paid the assessment more than three years after the confirmation, from recovering the amount from the lessee, who had covenanted to pay all special taxes, on the theory that such confirmation was a final judgment, the lien of which expired in three years, and that any payment thereafter was voluntary; the confirmation being a final judgment only as to the condemnation proceedings, the assessment of damages therefor, and the apportionment of the damages between the city and the property

in the benefit district, while, as to the collection of the assessment from the property in the district, a suit must be brought on a tax bill issued under the city ordinances.

8. MUNICIPAL CORPORATIONS (§ 564) — SPECIAL TAX BILLS—LIMITATIONS.

St. Louis City Charter, art. 6, § 25 (Ann. St. 1900, p. 4863), providing, if a special tax bill has not been entered satisfied within two years, its lien shall be discharged, unless suit is then pending to enforce it, does not apply to special tax bills issued for benefits assessed for widening a street.

9. LIMITATION OF ACTIONS (§ 5) SPECIAL TAX BILLS — LIMITATION — STATUTES—CONSTRUCTION.

Special provisions for limitation of actions, such as that in St. Louis City Charter, art. 6, § 25 (Ann. St. 1906, p. 4863), as to special tax bills for sewers, street grading, curbing, etc., and others, under charter authority, by city ordinance, being restrictive in their nature, will not be extended beyond their express terms.

10. LIMITATION OF ACTIONS (§ 34)—LIMITATION APPLICABLE—SPECIAL TAX BILLS.

St. Louis City Charter permits the city to regulate the collection of special tax bills for street widening by ordinance. Held that, in the absence of any ordinance providing a limitation for actions to enforce such tax bills, the general statute providing a five-year limitation for actions on a liability created by statute will apply.

11. LANDLORD AND TENANT (§ 148) — COVENANTS THAT RUN WITH LAND — SPECIAL TAXES—LESSEE'S COVENANT TO PAY.

Pending a lease in which the lessee covenanted to pay all special taxes, the property was assessed for benefits for the widening of a street, but the special tax bill thereon was not satisfied by the lessee. The lease terminated shortly before the death of the landlord, who devised the property to plaintiffs, who paid off the tax and sued the lessee to recover the amount. Held, that the covenant to pay all special taxes was one which ran with the land in whosesoever hands it might be, and was not merely a personal duty, the right of action for breach of which was in the testator and would not pass to her devisees, since the special tax bill could not be enforced by a personal judgment against the owner, but its lien could only be enforced in rem against the land.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Theodosia W. Pleadwell and others against the Missouri Glass Company.

Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

J. L. Hornsby, for appellants. P. R. Flitcraft, Jacob Klein, and Hough, Eough & Walker, for respondent.

COX, J.

Marie E. Patterson, as owner, leased to defendant for a period of 10 years from June 1, 1898, the premises at the southeast corner of Twelfth and Olive streets in the city of St. Louis. The lease contained the following clause: "The party of the second part (the defendant), its successors and assigns, hereby agrees to pay all taxes, whether general or special, levied or assess ed against said property or improvements thereon during said term." On February 24, 1898, the city of St. Louis instituted a proceeding under the provisions of its charter against Alanson D. Brown and others for the widening of Twelfth street between St. Charles street and Washington avenue. The defendant was not made a party to this proceeding; neither was any part of the property covered by the lease aforesaid condemned for the purposes of widening the street. In the proceeding the court appointed commissioners who viewed the property, ascertained its value, assessed the damages, and apportioned the same to the city for the amount of benefit to the public generally, and for the remainder of the damages established a benefit district, which district included the property covered by the lease, aforesaid, and assessed the remainder of the damages pro rata against each piece of property in the said benefit district as in the opinion of the commissioners was proper. The report of the commissioners was filed in the circuit court, was by the court approved, and on April 3, 1899, final judgment was rendered thereon. The further proceedings as provided by the charter and ordinances of the city resulted in the issuing of a tax bill in the name of the city against the property described in the lease in the name of Marie E. Patterson, as owner, dated April 9, 1901, for the pro rata share of the benefits assessed against this property. Notice of the issuing of this tax bill was published on April 26, 1901. The lease aforementioned terminated May 31, 1903. The lessor, Marie E. Patterson, died testate on the 9th day of March, 1904, and by her will devised the property described in the lease to the plaintiffs in this case, Theodosia Wallace Pleadwell and Henrietta Wallace. The assessment aforementioned had not been paid; neither was the tax bill paid until December 21, 1904, at which date the plaintiffs in this case paid the same, which then amounted to $2,935.85, then brought this suit against defendant to recover the sum so paid, and based their right of recovery upon the clause in the lease heretofore set out.

The petition in this case alleged substantially the foregoing facts: That the charter and ordinances of the city had been complied with ; that the plaintiffs were compelled to pay the sum aforesaid in order to protect the title to their property; that, the same being a special tax, defendant was bound by the covenant of its lease to pay the same, and, having failed to do so, asked for judgment for said sum. The answer was a general denial; also, a repetition of the proceedings set out in plaintiffs' petition, and plea of the two-year statute of limitations; that the tax bill was issued without any authority; that the judgment of the circuit court approving the report of the commissioners had been rendered more than three years before the payment by plaintiffs; that the lien of said judgment had expired, and therefore plaintiffs' payment was a voluntary one for which they cannot now recover; that the lien of the tax bill, if it was a lien, was merged in .the judgment; that the charge represented by the .:ax bill was not contemplated by the parties at the time of the execution of the lease and was not embraced within its covenants; that the city had not provided, by ordinances, or in any other manner, the method of collecting such sums as might be assessed against the owners of property especially benefited by the widening of the streets, and, for that reason, no cause of action could accrue to plaintiffs by the payment of the amount so assessed. The reply was...