Dickey v. Andover Inv. Co.

• Decision Date: 11 January 1932
• Docket Number: No. 17066.,17066.
• Citation: 45 S.W.2d 1086
• Parties: DICKEY v. ANDOVER INV. CO. et al.
• Court: Missouri Court of Appeals

45 S.W.2d 1086

DICKEY v. ANDOVER INV. CO. et al.

No. 17066.

Kansas City Court of Appeals. Missouri.

January 11, 1932.

Rehearing Denied February 1, 1932.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

Action by W. S. Dickey against the Andover Investment Company and others. Judgment for plaintiff, and defendant the Commerce Trust Company appeals.

Reversed and remanded.

James E. Goodrich and Wm. Bush, both of Kansas City, for appellant.

Winger, Reeder, Barker, Gumbiner & Hazard, of Kansas City, for respondent.

BOYER, C.

This is an action on a tax bill issued by Kansas City, Mo., against a certain tract of ground and as part payment for grading a portion of Main street. The petition alleges that the work was done in accordance with the provisions of an ordinance approved January 27, 1914; that on the 8th day of June, 1920, the city issued to the contractor the tax bill in question, and on said date duly certified to the city treasurer an apportionment of the cost of said work; and that the tax bill is dated June 8, 1920. A copy of the said special tax bill is set forth. In it reference is made to the land, the amount of the assessment thereon to pay its proportion of the cost of the public improvement provided for by the ordinance aforesaid, and recites that the work had been completed according to contract and accepted, and that the sum assessed has been duly levied and charged against the land, and is a lien thereon from and after the date of the bill. The petition further alleges ownership of the bill in plaintiff; that default was made in the payment of the installments and interest, and that the whole amount thereof is due; that by reason of the premises the property described is legally chargeable in favor of plaintiff on account of the cost of the work with the amount of the bill with interest; and that defendants own, or claim to own, the land hereinbefore described or some estate or interest therein. A special judgment was demanded for the sum claimed to be due and for the enforcement of the lien of the tax bill against the land.

The separate answer of the Commerce Trust Company is a general denial, coupled with the plea that it is the owner of a special tax bill issued by Kansas City, Mo., against the property described in plaintiff's petition, and that said tax bill is and constitutes a lien against said property which is prior and superior to any lien, right, title, or interest of the plaintiff in and to said property.

After hearing evidence, the trial court found for the plaintiff in the amount shown to be due upon his tax bill and that said bill was a superior first lien upon the property described, and adjudged that plaintiff recover said sum which was declared a first lien upon the real estate mentioned, and that plaintiff have therefor special execution. Defendant Commerce Trust Company duly appealed.

The case was heard and tried as an equitable proceeding and for the purpose of determining the question of priority between the tax bill of plaintiff and that of defendant trust company. This was the only contested issue. The record discloses that the hearing was informal, and the evidence consists almost entirely of statements of counsel, admissions, the tax bills and other documents, from all of which the following admitted facts appear:

The tax bill upon which plaintiff bases his suit bears the date of June 8, 1920. The explanation of the date is this. A grading contractor completed work in accordance with his contract with the city, and same was accepted and a tax bill issued against the property in question as part payment for said work, dated June 8, 1915. This bill with others, issued in payment for the same work, were held to be void because issued as cash bills instead of installment bills as required by the charter and ordinance authorizing the work. After the bills were declared void, the city was required by order of court, in a mandamus proceeding to which appellant was not a party, to issue new tax bills in payment for the work in question which was done, and the tax bill in this suit was one of the new issue dated June 8, 1920. Respondent is the owner of the bill. The work of grading the street was done in pursuance to the provisions of an ordinance approved as alleged January 27, 1914.

After the work of grading the street was completed and accepted and the tax bills for same issued to the contractor, the city enacted an ordinance providing for and authorizing the work of paving the same street, which said ordinance was approved June 19, 1919. The work of paving was completed according to the contract, accepted by the city, and a special tax bill was issued in part payment against the same tract of ground covered by the grading tax bill and for the amount apportioned and charged against the land as provided by law; and by its terms it was declared to be a lien thereon from and after its date, November 28, 1919. Appellant is the owner of this tax bill. In order to preserve the rights thereunder, a suit was instituted upon it which was pending at the time of the hearing in this case. The only contested issue in the trial court and the only question presented here on appeal pertains solely to the right of priority of lien between the tax bill of plaintiff and that of defendant trust company.

Opinion.

Appellant's assignment of error is that under the evidence the lien of the paving tax bill is superior to the lien of the grading tax bill, and the court erred in rendering judgment to the contrary and holding the lien of the grading bill superior to the lien of the paving bill.

It is conceded by both parties to be the rule that liens on land for special taxes take priority in the reverse order of other liens; that is, the last is first and the first last. Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972. The reason for the rule is clearly stated in the above authority. Each assessment for a public improvement is supposed to represent in amount the increased value accruing to the property on account of the work done. It is said in the case cited (loc. cit. 705 of 264 Mo., 175 S. W. 972): "The power to assess private property for public improvements, beyond the uniform rate prescribed by the Constitution is derivable only from the fact that such property is enhanced in value to the amount of the tax beyond that of other citizens, by the public betterment. Any assessment not thus bottomed is void."

And further on page 707 of 264 Mo., 175 S. W. 972, 973: "It would be inequitable to permit prior incumbrancers, in the enforcement of their liens, to realize the added value which has been put in the property charged by the labor of others necessary to its protection or the uses to which it must be applied, pending proceedings for the enforcement of the rights of incumbrancers, without subjecting such incumbrances to the costs and outlays thus subsequently incurred."

Justice is the foundation of the principles announced. In the case before us, the paving tax bill was for an equivalent addition to the value of the property. The work of grading the street had been performed long prior thereto, and the right of the contractor was fixed when his work was accepted. The grading contractor was entitled to receive a valid tax bill under date of June 8, 1915, but received on that date a void tax bill. This was not determined until after the paving contractor had entered into his contract with the city under an ordinance approved June 19, 1919, completed his work, had it accepted, and received a tax bill in part payment therefor under date of November 28, 1919. Thereafter the grading contractor's tax bill was declared void (Dickey v. Seested, 283 Mo. 167, 223 S. W. 57), and the plaintiff in this case, then being owner of said bill,...