City of Springfield ex rel. Southern Missouri Trust Co. v. Ransdell

• Decision Date: 31 July 1924
• Docket Number: 24045
• Parties: CITY OF SPRINGFIELD ex rel. SOUTHERN MISSOURI TRUST COMPANY, Appellant, v. J. W. RANSDELL et al
• Court: Missouri Supreme Court

264 S.W. 771

305 Mo. 43

CITY OF SPRINGFIELD ex rel. SOUTHERN MISSOURI TRUST COMPANY, Appellant, v. J. W. RANSDELL et al

No. 24045

Supreme Court of Missouri

July 31, 1924

Transferred from Springfield Court of Appeals.

Reversed and remanded.

Frank B. Williams and John T. Sturgis for appellant.

(1) The owner or beneficiary of an encumbrance on land, such as a prior mortgage or special tax bill, is an owner of such land and has such interest therein as makes him a necessary party defendant in any proceeding to enforce the superior lien of a subsequent special tax bill, if his lien is to be affected thereby. If he is not made a party and given his day in court, such foreclosure of the superior lien does not affect his rights and the right to redeem from the superior lien remains unimpaired. Sec. 9075, R. S. 1909; Construction Co. v. Ice Rink Co., 242 Mo. 241, 259; Paving Co. v Realty Co., 199 Mo.App. 226, 246; Stafford v Kizer, 82 Mo. 393, 399; Gitchell v. Kreidler, 84 Mo. 472, 476; State ex rel. v. Reynolds, 278 Mo. 560; Forrey v. Holmes, 65 Mo.App. 114. This right to redeem may be his sole remedy during the life of the superior lien, but thereafter he may enforce it against the property. (2) A special tax bill is not self-enforcing. Where there are other liens prior in time it gives a right to a superior lien, but it is optional with the owner of the junior special tax bill to assert and enforce it as a superior lien as against the prior encumbrance. To do so, he must make the prior lienholder a party to the foreclosure suit within the period limited by law for enforcing such superior lien. If this is not done, the rights of the prior-lienholder are unimpaired as against the purchaser under the judgment, to which he was not made a party. Paving Co. v. Realty Co., 199 Mo.App. 226; Lumber Co. v. Schafer, 251 Mo. 539, 548; Utah Implement Vehicle Co. v. Bowman, 209 F. 942; State ex rel. v. Reynolds, 278 Mo. 560; Missouri Real Estate Co. v. Gibson, 220 S.W. 675; Redlon v. Badger Lumber Co., 194 Mo.App. 650, 654; Hiller v. Schulte, 184 Mo.App. 42, 47. (3) The suit to enforce the sewer tax bill, Spandri v. Crutcher, under which defendant Ransdell claims title free from the prior tax bill now sued on, was demurable on the ground that plaintiff therein had no capacity to maintain the action. Such suit should be brought in the name of the city to the use of the contractor, instead of by the contractor. Sec. 9075, R. S. 1909; Bevier v. Watson, 113 Mo.App. 506; City of California v. Kiesling, 180 S.W. 559. This well illustrates why this plaintiff should have been a party to that suit and had his day in court.

H. E. Howell and Lincoln & Lincoln for respondents.

(1) The Spandri foreclosure suit was brought correctly, in the name of the contractor alone. Hinerman v. Williams, 224 S.W. 1017. (2) The owner of a special tax bill prior in time to the superior lien of a subsequent tax bill is not a necessary party defendant in any proceeding to enforce the superior lien of that subsequent tax bill. Missouri Real Estate & Loan Co. v. Gibson, 220 S.W. 675; Keating v. Craig, 73 Mo. 507; Allen v. McCabe, 93 Mo. 138; Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreider, 84 Mo. 472; Cowell v. Gray, 85 Mo. 169; Kurtz v. Gardner, 51 P. 398. (3) The right of the junior lienor to redeem from the senior lienor is limited to a proper proceeding in a court by the junior during the life of his lien, which is five years. Construction Co. v. Ice Rink Co., 242 Mo. 241; Stafford v. Fizer, 82 Mo. 393; Olmstead v. Tarsney, 69 Mo. 400; Jaicks v. Sullivan, 128 Mo. 177; Mumma v. Mumma, 92 A. 504. (4) The Spandri sewer tax bill was a lien against the lot in question and superior to that of appellant's tax bill, and defendant Ransdell, at the tax sale thereunder, acquired the legal title, subject only to the right of appellant to bring in the proper time a bill in equity to redeem, and failing so to do cannot maintain this suit at law. Olmstead v. Tarsney, 69 Mo. 396, 400.

OPINION

James T. Blair, P. J.

The Springfield Court of Appeals certified this case because it concluded its opinion conflicted with a decision of the St. Louis Court of Appeals. This is a suit on a paving tax bill.

In 1912, L. F. and M. L. Crutcher owned lot 6, block 5, Fairbanks Addition to the City of Springfield, then a city of the third class. In September of that year the paving tax bill sued on in this case was issued against the lot. No question concerning its validity is raised on this appeal. In October, 1913, a district sewer tax bill was issued to Spandri, the contractor who built the sewer, against the same lot. Appellant does not question the validity of that tax bill. Spandri brought suit on his sewer tax bill against the Crutchers and had judgment against them May 18, 1915. He did not make the owner of the paving tax bill, sued on in this case, a party. At the sale, on July 19, 1915, under the Spandri judgment, Ransdell, respondent in this case, bought the "right, title and interest" of the Crutchers in the lot. On September 6, 1917, three days before the expiration of its lien by lapse of time, appellant brought this suit on the paving tax bill. The Crutchers, who were the former owners of the lot, and Ransdell, who bought at the sale under the judgment on the Spandri sewer tax bill, were made defendants. The Crutchers disclaimed.

The petition is in the ordinary form in a suit on a tax bill. It contains no mention or allegation concerning the sewer tax bill or the judgment or sale under it. In that connection it alleges, merely, that "defendant owns or claims to own the lands charged with the lien of said tax bill, or some estate or interest therein." Judgment is prayed for the amount of the tax bill and interest and for foreclosure of the lien and sale under special execution. The answer sets up numerous matters, including the sale under the Spandri sewer tax bill. The reply alleges the Spandri sale was invalid because not brought in the name of the city, and that it did not affect appellant's claim because the owner of the paving tax bill now sued on was not made a party defendant in the Spandri suit. Prayer for judgment in accordance with the prayer of the petition is renewed in the reply.

The trial court found for respondent. After the trial court had, on January 23, 1921, announced that his "finding and judgment was for defendants" appellant "moved the court to permit it to amend its petition herein to conform to the evidence already admitted by inserting a prayer for alternative relief, asking the right to redeem the land in question from the Spandri sewer tax bill judgment and sale, in case the court should find and hold said sewer tax bill to be a superior lien to the tax bill sued on, and that the proceedings had in the circuit court, brought by Spandri to forclose the lien on said sewer tax bill, were valid as against this plaintiff, and the legal effect thereof to be that plaintiff could not recover on the tax bill in suit and have the land sold as against Ransdell to pay the tax bill sued on, which motion" was overruled, and leave to amend as requested was denied.

Appellant assigns that: (1) the fact that Spandri sued in his own name rendered the petition "demurrable on the ground that plaintiff therein had no capacity to maintain the action," and suggests, in argument, that this rendered the Spandri suit "a nullity and Ransdell got no title;" (2) the failure of Spandri to make appellant, or his predecessor in title, a party to his sewer tax bill suit left the lien of appellant's bill unaffected by the Spandri judgment and sale, and there is no obstacle to the enforcement in this suit of the lien of the paving tax bill to the exclusion of Ransdell and whatever rights he acquired by his purchase under the sale in the Spandri suit on the sewer tax bill; (3) that the court erred in refusing to permit the amendment appellant asked leave to make.

I. It is suggested that because the Spandri suit against the Crutchers was not brought in the name of the city the petition was demurrable, and since appellant was not a party to that suit it did not waive the defect in the petition; that, therefore, "there is no waiver and that proceeding is a nullity and Ransdell got no title."

The language of the statute is that the certified bill "shall be delivered to the contractor for the work, who shall proceed to collect the same by the ordinary process of law, in the name of the city, to his own use."

Hinerman v. Williams, 205 Mo.App. 364, cited by respondent, was a suit on a paving bill under a differently worded section not applicable to sewer tax bill suits and not in point. Under the decisions cited by appellant (City of Bevier v Watson, 113 Mo.App. l. c. 512; City of California v. Kiesling, 180 S.W. l. c. 560), the objection that the suit was brought in the name of the beneficial owner of the tax bill instead of in the name of the city to his use was one which could avail nothing unless made at the proper time in the suit on the tax bill. The judgment in the Spandri case cannot now be assailed for this reason. Whatever would have been its force and effect if there had been literal compliance with the statute quoted, such is now its effect with respect to all persons. The Crutchers did not then and could not now raise the question. The judgment was and is good against them. The fact the present appellant as a junior-lien holder was not a party to that suit does not give it a right now to raise this question of procedure which the Crutchers did not raise, but waived. Its present rights depend, not upon the fact that a mere irregularity may have occurred in the proceeding against the Crutchers, but rather upon the fact that it was not a party to the Spandri suit. It seems...