City of St. Joseph v. Forsee
| Decision Date | 19 December 1904 |
| Parties | THE CITY OF ST. JOSEPH to the use of PETER SWENSON, Defendant in Error, v. ZEILDA FORSEE, Plaintiff in Error |
| Court | Kansas Court of Appeals |
Error to Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
James F. Pitt for plaintiff in error.
(1) The chief question presented by this record involves the validity of a sewer bill, issued against and in the name of a dead person, whom the officer knew to be dead, and while he in fact knew who was the owner of the property described in it. R. S. 1899, sec. 5686. (2) Is this statute mandatory, or merely directory? If mandatory, then a taxbill made out, as in this case, against a dead person, whom the engineer knew to be dead, and who by no possibility could be the owner, is absolutely void, and not amendable. In such circumstances the officer makes no mistake, to be corrected or amended; he willfully fails or refuses to obey the law, and his act is a nullity. Sedalia v. Gallie, 49 Mo.App. 397; Westport v. Mastin, 62 Mo.App. 657; State ex rel. v. Gibson, 12 Mo.App. 1; Kefferstein v Knox, 56 Mo. 186; Vance v. Corrigan, 78 Mo. 97; Jaicks v. Sullivan, 128 Mo. 177; St. Louis v Wenneker, 145 Mo. 239.
Graham & Fulkerson for defendant in error.
(1) The judgment is for the right party. The taxbill was made out "in the name of the owner" within the meaning of the statute. R. S. 1899, sec. 5686; Vance v Corrigan, 78 Mo. 94; Payne v. Lott, 90 Mo. 676; Nolan v. Taylor, 131 Mo. 227; Elliott on Roads and Streets (2 Ed.), sec. 598; Reed v. Kalfsbeck, 147 Ind. 148; Trust Co. v. Chehalis Co., 79 F. 282. (2) At most the statute is but directory and not mandatory. St. Louis to use of Rotchford v. DeNoue, 44 Mo. 136.
This is a suit upon a taxbill issued against Amanda Corby as the owner of the property sought to be charged with the lien for work done by Peter Swenson in the construction of a sewer in the city of St. Joseph, Missouri. At the time the contract for the work was let the title to the property in question--as it appeared by the records--was in said Amanda Corby, but the fact was that she had died previously thereto and the same had descended to the defendant who was her sole heir at law.
On the trial the taxbill was introduced in evidence over the objections of the defendant. The ground of objection was that the taxbill should have been made out against the owner of the property. The defendant had set up in her answer that when said taxbill was issued the engineer who issued it, as well as plaintiff Swenson, knew that the title to the property was in the defendant. This answer was not controverted by any reply and thereby stood confessed. The plaintiff contends that the case was tried upon the theory that said allegation was traversed but the record of the trial does not so show.
Section 5686, Revised Statutes 1899, governing cases of this kind requires that taxbills of the nature of that in controversy should state the name of the owner of the property. The courts hold that the owner mentioned in this section is that person whom the public records show to be vested with the title, in the absence of knowledge to the contrary. [Smith v. Barrett, 41 Mo.App. 460; Vance v. Corrigan, 78 Mo. 94; Cowell v. Gray, 85 Mo. 169; Payne v. Lott, 90 Mo. 676, 3 S.W. 402 and Crane v. Dameron, 98 Mo. 567, 12 S.W. 251.] Yet, it is equally as well-settled law that an omission to state in a taxbill the owner of the property sought to be charged with a lien does not render it invalid. [City of St. Louis ex rel. v. DeNoue, 44 Mo. 136; Stadler v. Roth, 59 Mo. 400; Vieths v. Planet P. & F. Co., 64 Mo.App. 207.] It follows therefore that notwithstanding the said taxbill was not made out against the known owner of the property, the same was not invalid.
The statute requires that a suit to enforce such taxbills shall be brought against the owner of the property to be charged and in the absence of knowledge or notice to the contrary, the holder of the bill has the right to assume that the person in whom the records show the title to be vested is the true owner, and to sue accordingly; and that a sale under execution upon a judgment against the record owner passes the title as against the grantee in an unrecorded deed from him,...
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