City of Springfield v. Deming

• Decision Date: 10 May 1923
• Docket Number: No. 3094.,3094.
• Citation: 252 S.W. 91
• Parties: CITY OF SPRINGFIELD ex rel. PEOPLE'S RANK OF SPRINGFIELD v. DEM. ING.
• Court: Missouri Court of Appeals

252 S.W. 91

CITY OF SPRINGFIELD ex rel. PEOPLE'S RANK OF SPRINGFIELD v. DEM. ING.

No. 3094.

Springfield Court of Appeals, Missouri.

May 10, 1923.

Rehearing Denied June 8, 1923.

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

Action by the City of Springfield, on the relation of the People's Bank of Springfield, against R. 0. Deming. From a judgment sustaining demurrer to the petition, relator appeals. Reversed and remanded.

C. W. Hamlin and Hamlin & Hamlin, all of Springfield, for appellant.

John Schmook, of Springfield, an.C. C. Counts, of Oswego, Kan., for respondent.

FARRINGTON, J.

This cause was commenced to enforce an alleged special lien founded upon district sewer tax bills. A demurrer to the second amended petition was sustained, and relator appealed. Relator will be referred to herein as plaintiff and respondent as defendant.

Plaintiff's petition is in 21 counts, each count based upon a separate tax bill against separate lots. The tax bills were issued April 15, 1914, and originally given to one McSweeney, the contractor, in payment for the work in the construction of the sewer. The People's Bank is the assignee of said tax bills. On August 29, 1914, the defendant here instituted suit to have said tax bills canceled and declared void. That cause finally reached this court, and was disposed of August 23, 1920, adversely to the present defendant. See Deming v. City of Springfield et al. (Mo. Sup.) 217 S. W. 27, and Deming v. City of Springfield et al. (Mo. App.) 224 S. W. 1004. The first suit concerning these tax bills will be hereinafter referred to as the suit to cancel. The ground of defendant's demurrer is that plaintiff's cause of action is barred by the statute of limitations. Plaintiff in the cause at bar recites in his petition the history of the litigation in the suit to cancel, and avers, in an effort to avoid the statutes of limitations, that, while the suit to cancel was pending in the appellate court, and prior to April 15, 1919, the end of five years from the date of issue of the tax bills, the defendant at divers times promised and assured plaintiff that, if the judgment of the appellate court in the suit to cancel should be adverse to him he would pay each and all of said tax bills without further cost and litigation; that prior to April 15, 1919, defendant "requested plaintiff not to institute suit on said tax bills, or either of them, agreeing in consideration therefor to pay each of said bills upon the final decision of the appellate court aforesaid, if said decision should be adverse to him, and at the time of making said promise the defendant stated if plaintiff would refrain from instituting a suit for the collection of said tax bills until after the final determination of the case pending in the appellate court he would not claim as a defense the statute of limitations if the decision of the appellate court was not mad& prior to the running of said statute; that the plaintiff believed at the time the defendant made the representations aforesaid that he was in good faith, and believed he would carry out each and all of said representations, and by reason thereof, and so believing, did not file any suit for the enforcement of the lien of said tax bills prior to the 15th day of April, 1919." Plaintiff "fur." ther alleges:

"That from the acts, declarations, promises, and representations of the defendant he waived his right prior and subsequent to April 15, 1919, to plead or claim the defense of the statute of limitations in this action, and that by reason of his said acts and statements he is now estopped from pleading as a defense the statute of limitations, and from making same against the collection of the tax bills aforesaid."

The demurrer is defended on three grounds: First, defendant contends that the five-year limitation prescribed for certain tax bills in section 8323, R. S. 1919, is applicable to the tax bills Involved here, and not the general five-year statute of limitations; second, that defendant could not waive the statute applicable here, and could not by agreement extend this special limitation; third, that the allegations to the effect that defendant agreed to pay the tax bills if defendant lost in the appellate court in the suit to cancel does not disclose, nor is there any showing, that said promise was in writing, as required by section 1338, R. S. 1919.

The court ruled in Koch v. Shepherd (Mo. App.) 193 S. W. 601, that the general Eve-year statute (section 1317, R. S. 1919) governed in sewer tax bills issued under what Is now section 8305, R. S. 1919. The tax bills herein involved were issued under section 8305; hence the Koch Case is directly in point, and we adhere to that ruling. The more serious question for determination is the power of the property owner to toll or waive the statute by agreement or promise, as alleged in plaintiffs petition. Adkins v. Case, 81 Mo. App. 104, involved the question of waiver of limitation of a tax bill. To avoid the bar of the statute plaintiff in that case alleged in his petition that the defendant agreed with him before the time had run to waive the limitation if he would not bring the action within the time, and that, relying upon the promise, plaintiff refrained from instituting suit until limitation had run. When stripped of allegations not of consequence, plaintiff in the case at bar alleges no more than was alleged in the Adkins Case. It is true that plaintiff here alleges that defendant, both prior and subsequent to the running of the statute, made the alleged promise not to contest if the suit to cancel was decided adversely to him, provided plaintiff would refrain from suing till the suit to cancel was determined. But the subsequent promise was a mere nudum pactum. I Wood on Limitations (4th Ed.) § 76. This text says:

"But after a debt is actually barred by the statute a mere naked promise not to plead the statute has no validity, as it is a mere nudum pactum. In order to be operative it must be predicated on a new consideration."

In the Adkins Case the court found that defendant had in fact only agreed to pay the tax bills if the plaintiff would refrain from suing, and had not agreed to waive the statute of limitations, but conceded that there was ground for finding also that defendant had agreed to waive the statute, and ruled on that question. The limitation of the lien fixed by the statute In the Adkins Case was: "Such lien shall continue for two years thereafter, but no longer," except under certain specified conditions which are not material here. The court, speaking of the lien and its duration in the Adkins Case, said:

"It prescribes a duration, that is, it brings the lien into existence for two years, `but no longer, except as in this article otherwise provided.'"

And the exception is that suit shall be brought on the bill within two years. The effect of the allowance of plaintiff's contention would be to add another exception, viz. "Unless the property owner agrees to a longer period."

We think that the statute of limitations in the tax bill in suit is not controlled by decisions such as the Adkins Case, because there the statute created a lien for a certain period while in the present case there is no period fixed by section 8305, R. S. 1919, governing sewers for cities of the third class, the statute under which the sewer in this suit was built, and, as heretofore stated, sewer bills issued under this section of the statute are governed by the general five-year statute of limitations. Section 1317, R. S. 1919. If this latter section applies, then we are of the opinion that it should apply with all of its vigor and all of its limitations.

One of the limitations on the general five-year statute is that it may be extended by the debtor or the one holding the chose in action. It has been said that suits to enforce tax bills, such as in this case, are actions in rem. That is true only in the sense that a personal judgment cannot be rendered against the owner of the land. In...