Barrie v. The Richmond Cemetery, a Corp.

• Decision Date: 14 June 1926
• Parties: ROBERT BARRIE, APPELLANT, v. THE RICHMOND CEMETERY, A CORPORATION, RESPONDENT. [*]
• Court: Kansas Court of Appeals

285 S.W. 130

221 Mo.App. 708

ROBERT BARRIE, APPELLANT, v. THE RICHMOND CEMETERY, A CORPORATION, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

June 14, 1926

Appeal from the Circuit Court of Ray County.--Hon. Ralph Hughes Judge.

AFFIRMED.

Judgment affirmed.

E. A Farris and Milligan & Thompson for appellant.

Geo. W Crowley, John C. Jacobs and Lavelock, Kirkpatrick, Clark & Garner for respondent.

ARNOLD, J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action upon a special tax bill. The record discloses that on June 6, 1917, the council of the city of Richmond, a city of the third class, duly passed and adopted a resolution declaring necessary the pavement of West Main street, a street running east and west in said city, from the west line of Camden street which intersects West Main at right angles, to a point ten feet west of the gateway to Sunny Slope Cemetery in said city, specifying therein the kind of paving and guttering to be employed in said work. On July 10, 1917, after due publication of said resolution the mayor and council of the city of Richmond duly passed an ordinance No. 731, authorizing the paving of the street in the manner authorized in said resolution and directing the letting of the contract.

Pursuant to said ordinance, the Kennedy-Olson Construction Co. entered into a contract with the city for the improvement called for in the resolution and ordinance. The said contractors duly performed their contract, the improvements called for were made and the work received by said city. Assessments for payment of the costs of said improvement were duly made by ordinance and the city thereafter caused to be issued tax bills against the property abutting upon said improvement. Said tax bills were delivered to the Kennedy-Olson Construction Co. in payment for the improvement and after-wards were assigned by that company to plaintiff herein.

The city of Richmond by ordinance assessed the sum of $ 1397.68 against "Lot 6 in subdivision of the southeast quarter of the southeast quarter, section 25, township 52, range 28, Ray Co. Mo.," in the name of the Richmond Cemetery Company, as its proportionate share of the cost of said improvement, and issued its tax bill No. 16 therefor, which is the one sued on in this action. This tax bill is dated December 19, 1917, and insofar as its terms are applicable to the issues raised in this case, it is as follows:

"No. 16 $ 1397.68

"Special Tax Bill

"for

"Grading, Curbing, and Paving.

"Special tax bill for grading, curbing and paving with No. 1 Vertical Fibre Paving Brick Blocks, a part of West Main Street, in the City of Richmond, Ray County, Missouri.

"It is hereby certified that the following described real estate, situated on the recently improved part of West Main Street in the City of Richmond, Ray County, Missouri, and owned by . . . ., to-wit:

"Lot Six (6) in Subdivision of the southeast quarter of Section Twenty-five (25), Township Fifty-two (52), Range Twenty-eight (28), Ray County, Missouri, as per plat thereof now on file in the recorder's office of said Ray County, Missouri.

"Has been charged with the sum of one thousand three hundred ninety-seven & 68/100 dollars as a special tax for grading, curbing and paving with No. 1 Vertical Fibre Brick Blocks, parts of the roadway part of said West Main street between the west line of Camden avenue on the east and ten feet west of the gateway to Sunnyslope Cemetery on the west."

Said tax bill is signed by the city clerk and the corporate seal of the city is affixed thereto.

The tax so assessed was not paid and suit thereon was instituted and summons served on December 18, 1922.

The petition alleges the corporate status of the city of Richmond, as a city of the third class; the due and orderly passing of the resolution declaring the pavement of West Main street necessary, between the points mentioned therein; the publication of the resolution; the passage of ordinance No. 731 in relation to said improvement for the grading, paving and curbing of same as specified; that in pursuance to said ordinance the Kennedy-Olson Construction Co. entered into a contract for the construction of said improvement; that said contractors duly performed said contract and that all of said work was duly approved, received and accepted by said city and an assessment for the costs of said work was made by ordinance No. 755, passed December 18, 1917; and that special tax bills were duly issued in payment thereof and delivered to the said Kennedy-Olson Construction Company which assigned same to plaintiff herein, now the legal holder thereof.

That at the time of the issuance of said tax bills, the land described in the tax bill sued on was in the name of and owned in fee by defendant, The Richmond Cemetery Company, a corporation, and that said company is now the owner of said real estate; that Lot 6 in subdivision of southeast quarter of southeast quarter, section 25, Township 52, Range 28 Ray County, Mo., was duly assessed for said improvement according to the frontage of said property, in the sum of $ 1397.68, and that there was charged against the said property said sum as its proper and proportionate share of said costs. The petition further states that the city of Richmond made out a bill of said assessment in the name of the owner at the time the same was issued, namely, The Richmond Cemetery Company, and entered by the city clerk an abstract thereof in a book provided and maintained for that purpose by the city of Richmond wherein were recited the date of said tax bill and the name of the property owner, and the person in whose name the tax bill was issued and the description of the property subject thereto and the street upon which it abuts, together with the amount of the tax bill and the character of the improvements. That by the terms of said tax bill and the laws in such cases made and provided, the said tax bill bears interest at eight per cent per annum from thirty days after its date of issue, December 19, 1917; and that the total amount of said tax bill, $ 1397.68, with interest from January 19, 1918, is due and payable, and judgment therefor is sought.

In due time answer in the form of a general denial was filed and later, by leave of court, an amended answer was filed which, in addition to a general denial, states that plaintiff's cause of action, if any, accrued more than five years prior to the commencement of this suit and that it is thereby barred by limitation, under the laws of Missouri, especially under sections 1317 and 8323, Revised Statutes 1919.

Upon the pleadings thus made and by agreement, the cause was tried to the court, without the aid of a jury. The finding and judgment were for defendant. Motions for a new trial and in arrest were ineffectual and plaintiff appeals.

The assignments of error are chiefly formal, to-wit, (1) that the judgment is against the evidence and the greater weight of the evidence; (2) the judgment is against the law and the evidence; (3) that the court erred in not rendering judgment for plaintiff; (4) in declaring that plaintiff had failed to prove title in defendant to the property set out in the tax bill; (5) in holding the lien of the tax bill did not attach to all the lands set out in the bill; (6) in declaring the law to be that plaintiff could not recover unless all the parties having interest in said lands were made parties defendant; and (7) in declaring the law to be that the purchaser of a lot in a cemetery took a fee-simple title.

The first four of these assignments of error are so closely allied that they may be considered jointly and will be determined by our solution of the three remaining charges. It is first urged that the tax bill sued on herein is not barred by the Statute of Limitations. This is urged in response to the charge in the answer that the bill, in fact, is barred by the statute. But as the judgment was for defendant this point is not presented for consideration herein, and appears not to have been passed on by the trial court.

It is insisted that special tax bills are prima-facie evidence of liability and in all actions thereon such tax bill shall be prima-facie evidence of its own validity, of facts authorizing its issue, and that it is a special lien against the land described therein. Defendant admits the rule just stated is a correct statement of the abstract principle of law applicable, where the owner of the land is properly named in the tax bill; but that is not this case. One defense urged herein is that the defendant Cemetery Company is not the owner of all the land described in the tax bill. On this point it is deemed proper to refer to the evidence adduced at the trial. The record shows that in 1868, Cornelius Vaughn Wm. A. Donaldson, Geo. I. Wasson, Clayton Jacobs, Osker A. McFarland and Wm. P. Hubbell...