City of Springfield v. Ransdell
| Decision Date | 31 July 1924 |
| Docket Number | No. 24045.,24045. |
| Citation | 264 S.W. 771 |
| Parties | CITY OF SPRINGFIELD ex rel. SOUTHERN MISSOURI TRUST CO. v. RANSDELL et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Suit by City of Springfield on the relation of the Southern Missouri Trust Company against J. W. Ransdell and others. From Judgment for defendants, plaintiff appealed to the Springfield Court of Appeals, which certified the case. Reversed and remanded.
Frank B. Williams and John T. Sturgis, both of Springfield, for appellant.
H. E. Howell and Lincoln & Lincoln, all of Springfield, for respondents.
The Springfield Court of Appeals (240 S. W. 867) 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 tar 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 foreclose 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.
1. 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."
Hinerman v. Williams, 205 Mo. App. 364, 224 S. W. 1017, 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. loc. cit. 512, 87 S. W. 612; City of California v. Kiesling [Mo. App.] 180 S. W. loc. cit. 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 lienholder 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 to appear that counsel is of a like opinion.
II. Appellant concedes that under the decisions (Morey Construction Co. v. Ice Rink Co., 242 Mo. 241, 146 S. W. 1142, Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972), the Spandri sewer tax bill constituted a lien superior to that of the paving tax bill sued on in this case. It is correct in its position that its right to redeem was not affected by the Spandri judgment and sale, because neither it nor its predecessor in title was a party to the Spandri suit. Its real contention is that, though the sewer tax bill was the superior lien, it was optional with its owner whether he would enforce it as a superior lien as against the inferior lien of the paving tax bill sued on in this case; that in order to have so enforced it, it would have been necessary for the owner of the lien of the sewer tax bill to have made "the prior lien holder" (the paving tax bill owner, which bill was prior in date, but inferior to the sewer tax bill) "a party to the forclosure suit within the period limited by law for enforcing such superior lien," or leave the tax bill owner free to enforce his lien against the whole title without regard to the Spandri sale.
The general rule of law is that one not made a party to a suit is not affected by it. The effect of the suit on the sewer tax bill is one of the controversies in this case. This and other courts have treated the respective rights of owners of liens of successive tax bills as analogous, in principle, to those of junior and senior mortgages. Corrigan v. Bell, 73 Mo. loc. cit. 57.
Unless a different rule is established by statute, a judgment of foreclosure and sale under a first mortgage does not bar a second mortgagee's right to redeem from the purchaser at the first mortgage foreclosure sale, nor does it bar his right to foreclose his mortgage, if such right he had, unless such junior mortgagee is a party to the suit. Anson v. Anson, 20 Iowa, loc. cit. 58 et seq., 89 Am. Dec. 514; Farwell & Antis v. Murphy, 2 Wis. 533; McKerman v. Neff et al., 43 Ind. loc. cit. 506; Denton v. Ontario County National Bank, 150 N. Y. loc. cit. 126, 134, 44 N. E. 781; Peabody v. Roberts, 47 Barb. (N. Y.) 91; Karl v. Conner, 97 S. W. 1111, 30 Ky. Law Rep. 238; Catterlin et al. v. Armstrong, 79 Ind. loc. cit. 521, 525; Holmes et al. v. Bybee et al., 34 Ind. loc. cit. 365 (judgment); Hasselman et al. v. McKernan et al., 50 Ind. loc. cit. 443; Hosford v. Johnson et al., 74 Ind. loc. cit. 481; Catterlin et al. v. Armstrong, 101 Ind. loc. cit. 264 et seq.; Stewart v. Johnson, 30 Ohio St. loc. cit. 30, 31; Besser v. Hauthorn, 3 Or. loc. cit. 135 et seq.; Memphis & Little Rock R. R. Co. v. State, 37 Ark. loc. cit. 643; Walsh v. Ins. Co., 13 Abb. Pr. (N. Y.) loc. cit. 37 et seq.; Bigelow v. Davol, 62 Hun, loc. cit. 246 et seq., 16 N. Y. Supp. 646; Id., 69 Hun, 74, 23 N. Y. Supp. 494; Vanderkemp v. Shelton, 11 Paige (N. Y.) 28; 27 Cyc. p. 1545.
This rule is not applied in its full scope in those jurisdictions in which a mortgagee takes legal title by force of his mortgage, and in which, as a consequence, a right to redeem is all that is left in the mortgagor. That difference accounts for the difference in rulings. In such circumstances a second mortgage covers only what the mortgagor has left, i. e., a right to redeem. In this and other states a mortgage conveys no estate in the land, but creates and evidences a lien thereon to secure the debt. Until...
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