Bean v. Munger Land Co.

• Decision Date: 26 May 1924
• Docket Number: No. 15061.,15061.
• Citation: 265 S.W. 844
• Parties: BEAN et ux. v. MUNGER LAND CO.
• Court: Missouri Court of Appeals

265 S.W. 844

BEAN et ux. v. MUNGER LAND CO.

No. 15061.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Rehearing Denied July 9, 1924.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Albert C. Bean and wife against the Munger Land Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Ralph S. Latshaw, Jr., of Kansas City, Mo., and Louis R. Gates, of Kansas City, Kan., for appellant.

L. C. Harper, of Kansas City, Mo., for respondents.

ARNOLD, J.

This action is based upon alleged breach of covenants in two warranty deeds to certain lands in the state of Kansas, involving the payment of special taxes.

Suit was instituted before a justice of the peace of Kaw township, Jackson county, Mo., and on June 16, 1921, was transferred to the circuit court. A jury was waived, and the cause tried to the court, sitting as a jury. No findings of fact or declarations of law were asked or given. The issues were made by plaintiff's statement filed in the justice court, defendant's answer, and plaintiffs' reply thereto.

Plaintiffs' petition and reply show their cause of action to be based upon the contention that defendant sold and conveyed to them by warranty deed on September 20, 1920, lots 18 and 19, and the south 10 feet of lot 20, block 3, Santa Fe Trails addition to the city of Rosedale, Wyandotte county, Kan., and by a second warranty deed, on said date, likewise conveyed all of lot 25, of the same addition and block; that both deeds contained the same covenant as to taxes, as follows:

"* * * Subject to existing restrictions of record, with the appurtenances, and all the estate, title and interest of the said party of the first part does hereby covenant and agree that at the delivery hereof it is the lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances except as hereinabove set forth, and subject to taxes for year 1920, and thereafter, and that it will warrant and defend the same in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns forever, against all persons lawfully claiming the same."

The clause, "except as hereinabove set forth," doubtless refers to the restrictions of record mentioned in the same clause of the deed, and precedent thereto, as we find no incumbrance mentioned in either of the deeds. The contention is that plaintiffs were entitled to the lands free and clear of all taxes which had been established against the property prior to the year 1920. In this connection, the evidence shows that at the time of such conveyance said lots 18, 19, and the south 10 feet of lot 20 had become and were subject to taxes in the form of special assessments for street improvements in the sum of $293.26, principal and interest, and that lot 25 had outstanding taxes against it of the same character in the sum of $130.05. principal and interest. These taxes could be paid at once or in installments, at the option of the owner. On the sale of the properties thereafter said plaintiffs paid the amount of all these special taxes, being a total sum of $423.31, and have brought this suit to recover said amount, with interest, from defendant.

Defendant makes general denial in its answer, and specially pleads sections 11348 and 11349, Rev. Stat. Kansas 1915, defining liens as applied to taxes, and the payment of taxes, as between grantor and grantee, in the absence of an express agreement relative thereto. Further defendant avers that the taxes mentioned in the petition were not liens or incumbrances on the property at the time of the conveyance, though the existence of the taxes is admitted, as pleaded in said petition.

The judgment was for plaintiffs, and after unsuccessful motions for new trial and in arrest, defendant appeals.

The only point for our consideration is whether or not the taxes mentioned in the pleadings are such a lien as will render defendant liable therefor. The lands being located in the state of Kansas and the taxes complained of being assessed by the city of Rosedale in said state, the questions here involved will be solved by the laws of that state.

Defendant charges that the court erred in entering verdict and judgment in favor of plaintiffs since plaintiffs "assumed and agreed to pay all taxes and assessments of every nature which were or may be assessed against said land and appurtenances," in the deeds of trust given by plaintiffs to defendant in the purchase of the property, and for the further reason that the taxes which are the basis of this action are not such an incumbrance as is embraced in covenants of warranty deeds. While the questions are presented in several forms we think the points at issue are covered in the above. No question is raised as to the legality of the assessment.

It is urged by plaintiffs that there is nothing before this court for review, for the reason that the cause was tried by the court sitting as a jury, and no declarations of law were asked or given, and there was a general verdict and judgment, that in such situation if the judgment may be sustained upon any theory, it should not be disturbed on appeal. This is a correct statement of the rule. It is likewise true that judgments will be sustained if there is any substantial evidence to support them. Tomlinson v. Marshall, 208 Mo. App. 381, 236 S. W. 680; Vette v. Hackman, 292 Mo. 138, 237 S. W. 802; Mc-Cormick v. Mfg. Co. (Mo. App.) 236 S. W. 1088. But this does not relieve us from the necessity of reviewing the testimony to discover such supporting evidence.

Defendant urges this case is controlled by the provisions of the statute pleaded in its answer. Section 11348 thereof reads:

Sec. 200. Time When Taxes become Due; Lien Upon Real Property.—"All taxes shall be due on the first day of November of each year. A lien for all taxes shall attach to the real property subject to the same on the first day of November in the year in which such tax is levied, and such lien shall continue until such taxes and penalty, charges and interest which may have accrued thereon, shall be paid by the owner of the property or other person liable to pay the same."

Construing this statute, the Supreme Court of Kansas held in the case of Tull v. Royston, 30 Kan. 617, 2 P. 866, that where special taxes for sidewalks were assessed prior to the date of the deed, but not due and payable until about two months after the deed passed, the seller could not be held to pay such...