Commerce Trust Co. v. Syndicate Lot Co.
| Decision Date | 07 July 1921 |
| Parties | COMMERCE TRUST CO. v. SYNDICATE LOT CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
On motion for rehearing and to transfer. Motions overruled, and former opinion adhered to.
For former opinion, see 232 S. W. 1055.
Joseph Johnson, of Kansas City, for appellant.
B. C. Howard and Wm. D. Bush, both of Kansas City, for respondent.
The tax bills sought to be enforced herein were issued by Kansas City on December 28, 1915, being upon special assessments for local street improvements. Appellant Johnson's title is derived through two tax deeds, executed by the city to him on December 4, 1919, under two sales of the property for general city taxes, one sale being for the taxes of the years 1910 to 1913, both inclusive, and the other for the taxes of 1914 to 1919, both inclusive, all of which Johnson paid, as also the general taxes for the succeeding years. The suit to enforce the tax bills was filed June 24, 1920. The trial court enforced them as a first lien on the property, thereby making the lien of the tax bills superior to the title of appellant Johnson. The question is whether Johnson's title, having been obtained from the lien for general city taxes, should be made subordinate to the lien of the tax bills for local street improvements?
The question turns upon the construction and effect to be given that clause in section 39, art. 5, of the City Charter, relative to the tax deed to be executed to the purchaser at a sale for delinquent general city taxes which reads as follows:
"Which deed shall vest in the grantee an absolute estate in fee simple in the real property described therein, and shall convey all the right, title and estate of the former owner or owners, free from any and all incumbrances of whatsoever kind or nature, subject, however, to all unpaid state, county and city taxes, general and special taxes or assessments which are a lien thereon."
One of the contentions of appellant was that the foregoing clause does not refer to nor include special assessments for local street improvements, but has reference only to such taxes and assessments as are levied for special city public purposes, such as those for the establishment of city parks, a city market, city hall, etc., all of which are for a special purpose, and therefore may be denominated special taxes or assessments, and yet they nevertheless partake so far of the nature and importance of general taxes, which are for the support of the city government, as that they could well be made and declared to be taxes of equal rank and validity as those for general city revenue purposes, but which is not accorded to special assessments for local street improvements.
Judge Bland's opinion, however, construes the above clause of the charter against such contention and holds that the clause does include the latter. Having thus construed the said clause of the charter, the opinion then dismisses the question of the validity of said clause, namely, whether such clause conforms to the Constitution and statutes of the state, by saying that such is a constitutional question which appellant did not raise in time.
Appellant complains of this, and says that, as the case was submitted on an agreed statement of facts, the question of whether the charter clause conformed to the Constitution and statutes of the state was in the case from the start; that anyway it is not a question of the construction of the Constitution, but of the city charter, and whether it is to be made to conform to the state laws or not; and that the need for the invocation of the Constitution did not arise until the opinion above mentioned refused to go into the question on that ground.
There is no question but that appellant in this court attacks the validity as well as the meaning of the charter clause. But the case as pleaded in the petition was the ordinary proceeding to enforce the lien of the tax bills, and the answer of appellant did not invoke the Constitution, nor did he "put his finger" on any specific provision thereof claimed to have been violated, and on which violation he relied for a defense. The agreed statement of facts, as we understand it, merely took the place of evidence in the case, and did not obviate the necessity of invoking the Constitution, if a constitutional question is involved in the appellant's contention that his title is superior to the lien of the tax bills. We have been cited to no case where an agreed statement of facts obviated the necessity of raising the constitutional question at the earliest possible moment.
In the absence of any statutory provision to the contrary, it is generally held that the lien for general taxes takes precedence over a lien for a special assessment. Missouri. etc., Co. v. Burri, 216 S. W. 570; Ballard v. Way, 34 Wash. 116, 122, 74 Pac. 1067, 101 Am. St. Rep. 993; McMillan v. Tacoma, 26 Wash. 358, 67 Pac. 68; White v. Knowlton, 84 Minn. 141, 86 N. W. 755; White v. Thomas, 91 Minn. 395, 98 N. W. 101. In all of these Cases there was no statutory provision to the contrary, and in some of them there were provisions which impliedly authorized such ruling. In Minnesota, since 1905, there is a statute which provides that the lien of a special assessment for a local improvement in cities containing a certain population shall be of equal rank with the lien of the state for taxes, and under that statute the purchaser at the foreclosure of the state's lien for taxes takes the property subject to the lien of the special assessment. Gould v. St. Paul, 110 Minn. 324, 125 N. W. 273.
In Excelsior Springs v. Henry, 99 Mo. App. 450, 73 S. W. 944, this court held that a tax sale in 1897 for the delinquent state and county taxes of 1890 did not affect the lien of a special assessment which attached in 1894.
In Dougherty v. Henarie, 47 Cal. 9, it was held, under a section of the revenue law of that state, that a purchaser at a sale for state and county taxes took the same free from a prior lien for a special assessment.
In McCollum v. Uhl, 128 Ind. 304, 308, 27 N. E. 152, 725, it was held, without reference to any statute, and apparently on general principles, that the lien of the state for taxes is paramount and superior to the lien of an assessment for a ditch, but that, as no attempt had been made to foreclose the ditch lien at the time the state's lien was foreclosed, the purchaser took the land subject to the assessment lien.
In Indianapolis v. City Bond Co., 42 Ind. App. 470, 84 N. E. 20, it was held that a tax sale and the execution of a deed thereunder did not destroy the lien of a special assessment as the effect of the statute giving an absolute estate in fee simple merely defined the quality of the estate and did not release it from valid Lens.
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