City of St. Louis v. Wall
| Decision Date | 07 February 1939 |
| Citation | 124 S.W.2d 616,235 Mo.App. 9 |
| Parties | THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, PLAINTIFF APPELLANT, v. JNO. R. WALL ET AL., DEFENDANTS, ANNE M. EVANS (INTERVENER), RESPONDENT |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon William B. Flynn, Judge.
Order affirmed.
E. H Wayman, Jno. T. Hicks and Francis J. Sullivan for appellant.
(1) Courts are inclined to interpret the law with the view of preventing rather than inviting fraud. (2) Courts should be adverse to making rulings that are against public policy. (3) There being a difference between a special tax bill and a benefit judgment, the construction of this court will not be on the same theory. Stiers v. Vrooman, 115 S.W.2d 84.
Anne M Evans and Newell S. Ferry for respondent.
(1) Under the St. Louis City Charter, liens of special tax bills and benefit judgments, before execution, are declared to be on a parity. Stiers v. Vrooman, 115 S.W.2d 84, l. c 88; Article XXI, sec. 8, and Article XXIII, sec. 5, Charter of the City of St. Louis, Missouri. (2) Where special liens against property are on a parity, a sale of one divests the other, particularly where the sold-out holder was a party to the suits wherein both liens were obtained. Cooley on Taxation (4 Ed.), sec. 1241; Phillips on Mechanic's Liens, sec. 251-252; Rockel on Mechanic's Liens, sec. 188, p. 472; Stiers v. Vrooman, 115 S.W.2d 84; In re Paris Shade Co., 2 N.W. Supp. (2d) 451; State ex rel. v. Drew, 43 Mo.App. 362; Gill on Missouri Titles (3 Ed.), sec. 1535. (3) Rules of reverse priority applicable to the collection of successive general taxes necessarily apply to the collection inter sese between successive special assessments. Jaicks v. Oppenheimer, 264 Mo. 693, l. c. 707; Cooley on Taxation (4 Ed.), sec. 1242; Stiers v. Vrooman, 115 S.W.2d 84, l. c. 87; 61 C. J., sec. 1191; McQuillin on Municipal Corp. (2 Ed.), sec. 2262. (4) By the clear terms of the charter of the city of St. Louis, Missouri, the lien of a special benefit judgment against a particular property becomes "prior to all other liens thereon," and thereby prior to the lien of a benefit judgment theretofore rendered. Art. XXI, sec. 8, charter of the city of St. Louis, Mo.; Burke v. Lukens, 12 Ind.App. 648, 40 N.E. 641.
This is an appeal from an order of the Circuit Court of the City of St. Louis sustaining a motion to quash a special execution issued upon a benefit judgment, and to set aside the sheriff's sale thereunder.
In 1924 the City of St. Louis instituted a condemnation proceeding in the circuit court for the purpose of the establishment and construction of a cut-off from Eighteenth Street both north and south to Chouteau Avenue, and on March 1, 1929, final judgment was rendered upon the commissioners' report, assessing a special benefit of $ 135 against the particular piece of real estate involved in this proceedings.
In 1929 the City of St. Louis brought a condemnation proceeding in the circuit court for the establishment, opening, and widening of Eighteenth Street from Chestnut Street southward to a point 224 feet south of Walnut Street, and on October 6, 1932, final judgment was rendered upon the commissioners' report, assessing a further special benefit of $ 45 against the same piece of real estate.
On January 10, 1936, special execution was issued at the instance of the City of St. Louis to the use of the Greater St. Louis Corporation upon the judgment of October 6, 1932 (the later judgment in point of time), and at the sheriff's sale under such execution, which was held on February 26, 1936, the property was sold to one Anne M. Evans, the intervener herein, and a sheriff's deed executed and delivered to her.
Thereafter, on September 20, 1937, special execution was issued at the instance of the city upon the judgment of March 1, 1929 (the earlier judgment in point of time), and at the sheriff's sale under such execution, which was held on October 18, 1937, the identical property was bought in by the city.
Following the sale to the city under the execution issued upon the judgment of March 1, 1929, Anne M. Evans, the purchaser of the property at the prior sale under the execution issued upon the judgment of October 6, 1932, intervened in the cause and filed her motion to quash the execution issued upon the judgment of March 1, 1929, and to set aside the sale to the city thereunder, the ground of her motion being that the prior sale of the property to her, after the giving of due notice as required by law, had served to extinguish the lien of the judgment of March 1, 1929.
The lower court sustained the intervener's motion; and from the order so entered, the city has perfected its appeal to this court by the usual course.
As the city suggests in its brief, the question before this court is whether the judgment rendered on October 6, 1932, was prior and superior to the judgment rendered on March 1, 1929, against the same property, and whether the sale to the intervener under the execution issued upon the judgment of October 6, 1932, extinguished the lien of the judgment of March 1, 1929.
The lien of a benefit judgment which is rendered in the course of a condemnation proceeding brought by the city under its charter is created and provided for by Article XXI, section 8 of the Charter, which reads as follows:
To continue reading
Request your trial