City of Springfield v. Ransdell

• Decision Date: 08 May 1922
• Docket Number: No. 2945.,2945.
• Citation: 240 S.W. 867
• Parties: CITY OF SPRINGFIELD ex rel. SOUTHERN MISSOURI TRUST CO. v. RANSDELL et al.
• Court: Missouri Court of Appeals

240 S.W. 867

CITY OF SPRINGFIELD ex rel. SOUTHERN MISSOURI TRUST CO. v. RANSDELL et al.

No. 2945.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the City of Springfield, on the relation of the Southern Missouri Trust Company against J. W. Ransdell and others. From a judgment for defendants, plaintiff appeals. Judgment affirmed, but, as holding is in conflict with the holding in another appellate court, the cause is certified to the Supreme Court.

Frank B. Williams and John T. Sturgis, both of Springfield, for appellant.

H. E. Howell and Lincoln & Lincoln, all of Springfield, for respondents.

FARRINGTON, J.

The appellant, which we will throughout this opinion call the plaintiff, brought suit against the defendants on a special tax bill issued by the city of Springfield while it was a city of the third class. The tax bill was issued for paving the street in front of a lot owned by the defendants L. F. Crutcher and M. L. Crutcher, and was issued on September 9, 1912. J. W. Ransdell, the other defendant, was the purchaser of this property at a sale under a proceeding brought by John Spandri, a contractor, on a special tax bill issued by the city of Springfield on October 23, 1913, for sewer improvement to said lot. The defendants Crutcher disclaimed any interest in the lot, and the defendant Ransdell is the only party defendant of interest in this proceeding.

A number of grounds were set up in the answer as a defense to plaintiff's suit, all of which are of no interest in this appeal except the ninth, which was that the defendant Ransdell sets up as a bar to the enforcement of the lien of the plaintiff's tax bill the fact that he purchased the land under a tax bill issued for the cost of a sewer, and that this sewer was constructed after the paving involved in this suit; that the tax bill under which he purchased was a superior lien against the land, and that the tax bill sued on here is a second or junior lien; his claim being that, as he purchased at the sale to enforce the superior lien, he acquired the title free from the lien of plaintiff's bill, except as to the right of redemption.

It is admitted that in the suit instituted by Spandri the plaintiff was not made a party thereto, the suit being only against the owners of the land, the Crutchers.

The only question for decision on this appeal is whether the title which Ransdell acquired at the sheriff's sale in the suit brought on the Spandri tax bill is subject to the lien of the tax bill sued on in this case by the plaintiff which was issued for paving. The trial court held that Ransdell's title was good as against plaintiff's lien, and gave judgment for the defendants.

The Supreme Court, in the case of Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972, has decided by a majority opinion that a tax bill issued subsequently to a former tax bill is a superior lien on the land to the tax bill bearing seniority in point of time. In other words, it holds that the hen of the subsequent tax bill shall become the first or superior lien to the tax bill issued prior thereto. The same ruling was made in the case of Morey Engineering Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 146 S. W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 19130, 1200, and the same principle was announced in Granite Bituminous Paving Co. v. Parkview Realty Co., 199 Mo. App. 226, 201 S. W. 933, which opinion was reviewed without criticism in the original proceeding of State ex rel. Granite Bituminous Co. v. Reynolds, 278 Mo. 560, 213 S. W. 68. We can therefore affirm with reliance that the last decisions of the Supreme Court hold that the lien of a subsequent tax bill is superior to that of a prior tax bill, issued against the same property.

The trial court, in a written opinion delivered by it held that, under the decisions of the Supreme Court which were cited in the opinion, and which we will hereafter set out, the ultimate right that the plaintiff in this suit had against the holder of the first lien was to pay it or take the initiative and ask to redeem, or show that the Spandri lien was not valid, and in failing to do this its only remedy was to keep its eyes open, learn what was being done to foreclose the Spandri lien, and obtain permission to be made a defendant in the suit to foreclose it.

The disposition made of the case by the trial court in its written opinion meets with our approval, and we therefore set out that part of it touching this question:

"This is an action to enforce the lien of a tax bill issued for street paving on Center street.

"Previous to the beginning of this suit another tax bill was issued against the same land involved in this action. The tax bill sued on in the former suit was issued for the cost of a sewer, and that suit proceeded to judgment and sale, the defendants in that suit being L. F. Crutcher and M. L. Crutcher, who are two of the three defendants in this action. J. W. Ransdell was the purchaser at the sale in that case. The tax bill sued on in that action was a first lien against the property, being prior to the tax bill sued on in this case by reason of the fact that the improvement for which the sewer tax bill was issued was subsequent in time to the improvement for which the tax bill in this case was issued. Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972.

"The plaintiff in this suit seeks to enforce the lien of his tax bill against the land, and makes both L. F. Crutcher and M. L. Crutcher, the former owners of the land, and J. W. Ransdell, the purchaser at the before-mentioned sale under the sewer tax bill, defendants.

"The defendant Ransdell makes a number of defenses both in his answer and on the hearing which will be decided by the court in the order in which they are presented in the pleading. The other defendants disclaim any interest.

"Ninth, and last, the defendant Ransdell sets up as a bar to the enforcement of the lien of the plaintiff's tax bill the fact that he purchased the land under a tax bill issued for the cost of a sewer, and that this sewer was constructed after the paving involved in this suit; that the tax bill under which he purchased was a first lien against the land; that the tax bill here sued on is a second or junior lien. He maintains that, as he purchased at the sale to enforce the superior lien, he acquired the title freed from the lien of plaintiff's tax bill.

"That the sewer tax bill under which defendant Ransdell bought was a superior lien to plaintiff's bill is decided by the Supreme Court in the case of Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972. The question, then, is, Did the defendant get the title of the Crutchers freed from the lien of plaintiff's tax bill? One Spandri was the owner of the sewer tax bill, and brought suit thereon in 1914, and made L. P. Crutcher and M. L. Crutcher defendants, they at that time owning the land subject to this Spandri tax bill and the plaintiff's tax bill, but failing to make the owner of plaintiff's bill a defendant in that suit. Spandri had the superior lien. Was it necessary to make the owner of plaintiff's tax bill a party to his suit to collect it? If he did not, what title did the purchaser at his sale, the defendant Ransdell, get? This requires a consideration of the question of who are necessary parties to a suit brought by the holder of a superior lien for the purpose of enforcing his lien against the land charged with such lien. The answer to this question depends upon the provisions of statute as to who must be made parties, if there be such statute. If there be no such statute, then the answer to it depends upon the general requirements of the law as established by the courts. In this case there are no special statutory provisions. The charter of the city in effect when the Spandri suit was brought reads thus: `Said tax bills shall be delivered to the contractor for the work who shall proceed to collect the same by the ordinary process of law, and in case of absent owners he may sue by attachment and every such bill shall be a lien against the lot of ground described therein.'

"We are, therefore, perforce sent to the decisions of the courts touching this question. What do we find them to be? In every case except one which this court has been able to find it is held sufficient to make the owners of the land parties defendant. That is, those who own the title or estate as distinguished from the holders of junior or inferior liens. The proceeding being against the land—the res —it would seem obvious that only those who own an interest or estate in the land are necessary parties defendant. In other words, that only those who own the real interest, or a part of it—who own a part or interest that is real estate, as distinguished from a mere lien which is personal property—need be made defendants. Who, then, are owners of the land, or who have such an estate or interest as can be called real property? Does a second lien-holder have such interest? A mortgagee, or holder or a tax bill, for example? This question to the mind of this court might without hesitation be answered, No, were it not for the decision of the St. Louis Court of Appeals in the case of Paving Co. v. Realty Co., 199 Mo. App. 226, 201 S. W. 933. There the court holds that the holder of a mortgage or deed of trust, being a junior lien, is an owner of the land, and is a necessary party defendant in an action brought by the holder of a special tax bill to enforce his lien against the land. Reference is there made to the case of Morey Engineering Co. v. St. Louis Ice Co., 242 Mo. 241, 146 S. W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 1913C, 1200, in which the Supreme Court decided that for the purpose of that case at least a mortgagee or owner of a mortgage was an owner of the land. The decisions were both rendered in construing the provisions of charters relating to this question as to who...