City of St. Louis ex rel. Creamer v. Bernoudy

• Decision Date: 31 March 1869
• Citation: 43 Mo. 552
• Parties: THE CITY OF ST. LOUIS, TO THE USE OF JAMES CREAMER, Respondent, v. MARY J. BERNOUDY and A. J. P. GARESCHE, Appellants.
• Court: Missouri Supreme Court

43 Mo. 552

THE CITY OF ST. LOUIS, TO THE USE OF JAMES CREAMER, Respondent,

v.MARY J. BERNOUDY and A. J. P. GARESCHE, Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Garesche & Mead, for appellants.

I. The tax bill offered in evidence was no evidence against the land or defendant Garesche, he holding the legal title of the land, and his name not appearing on the said bill. The law (Sess. Acts 1865-6, p. 298) makes the bill evidence against the person therein named. Therefore, as there was no evidence in the case against the land except the bill, which was not made out against the person in whom the legal title was, the judgment of the court below should be reversed.

II. The record shows that the general term affirmed the judgment of the special term, though in the finding of the court the general term modifies the judgment of the special term. Under Gen. Stat. 1865, p. 549, § 41, the court should have affirmed or reversed the judgment, or given such judgment as the court below should have rendered. As the judgment now stands, there is a general judgment against Mrs. Bernoudy, a married woman.

Thos. Grace, for respondent.

I. The tax bill was properly issued by the engineer against the land in the name of Mrs. Bernoudy. She was an owner of the land within the meaning and direction of the law. In the act under which this suit is instituted (Sess. Acts 1865-6, p. 298), the engineer is directed to assess the cost of this class of work against the property--not against the owner. The law directs the engineer to make out a tax bill against each lot of ground in the name of the owner thereof. The important thing is to get the quantity of land owned by each person, and the number of square feet in each lot--because it is by lots, and by the area of each lot, that the assessment is made. The name of the owner is directory in the law, and not peremptory. A mistake in the name of the person, or a misapprehension, on the part of the engineer, of the real owner, or, in case the fee is carved up into two or three different estates, the issuing of the bill in the name of one owner only, will not vitiate the assessment. (Anderson v. Holland, 40 Mo. 600; Wheeler v. Anthony, 10 Wend. 144; Noble v. Indianapolis, 16 Ind. 506; State v. Jersey City, 4 Zabr. 108; 20 Pick. 418; Blackw. on Tax Tit. 144-5.)

II. Mrs. Bernoudy was the equitable and beneficial owner of the land; she was in possession, using the dwelling-house thereon for a family residence; she was liable for the taxes. Garesche had no beneficial interest in the land; even the dry legal title was subject to be divested out of him at the pleasure of Mrs. Bernoudy, and without his consent.

III. The wording and intention of the law is that the assessment shall be against the land itself; and the direction in the law that the tax bills of this class shall be made out against each lot of ground in the name of the owner is a provision intended in the law to be for the benefit of the contractor, and not for the benefit of the owner; it is to apprise the contractor whom to call upon for his money.

IV. The Circuit Court in general term had power to modify the judgment of the Circuit Court in special term, or to make the judgment which was general and special in the court below a special judgment only, and so modified to affirm the same. The respondent does not complain of the action of the court; and the appellants should not--it was for their benefit. (Gen. Stat. 1865, p. 889, § 4.)

WAGNER, Judge, delivered the opinion of the court.

This action was brought in the St. Louis Circuit Court to enforce the payment of a balance due on a special tax bill issued by the St. Louis city engineer, under a contract for constructing a district sewer. The legal title of the land sought to be charged with the payment of the tax is vested by deed in Alex. J. P. Garesche, as trustee,...