Eyssell v. City of St. Louis
| Decision Date | 21 May 1902 |
| Citation | 68 S.W. 893,168 Mo. 607 |
| Parties | EYSSELL et al., Appellants, v. CITY OF ST. LOUIS |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.
Affirmed.
Sigmund Labsap for appellants.
(1) A special taxbill for the opening of a street is a lien on the property charged. Art. 6, sec. 5, of the Scheme and Charter of the City of St. Louis, R. S. 1899. An action on a special taxbill is barred by the five years' limitation. St Louis v. Newman, 45 Mo. 138; Turner v. Burns, 42 Mo.App. 94. (2) Such taxbill, although barred, is an apparent lien and a cloud upon the title, against which a court of equity will grant relief, there being no adequate remedy at law. Pomeroy, Equity Jurisprudence (2 Ed.), sec 1345; Bispham's Principles of Equity (5 Ed.), sec. 575; Gardner v. Terry, 99 Mo. 523; Field v. W. Orange, 39 N.J.Eq. 60; Loring v. Hildreth, 170 Mass. 331; Field v. Inhabitants of West Orange, 37 N.J.Eq. 434. (3) An owner of land may institute an action against any person seeking or claiming any interest in such property, to ascertain and determine the interest of said party in such real property, and to define and adjudge the interest of the parties severally in and to such real property. Sec. 650, R. S. 1899.
Chas. W. Bates and Carl Ungar for respondent.
(1) Generally the test by which to determine the existence of a cloud upon the title is, whether in ejectment by the grantee in the deed upon which the adverse title rests, the owner in possession would be required to offer evidence to defeat a recovery. If such evidence would be necessary, a cloud exists. Bispham Prin. of Equity (6 Ed.), sec. 575; Sloan v. Sloan, 25 Fla. 53. This jurisdiction, however, will not be exercised unless some equity is apparent, or a cloud would otherwise exist against the title of the complainant. If no such equity is shown, or no such injury is likely to ensue, the relief will be refused. Eckman v. Eckman, 55 Pa. 269; Haine's Appeal, 73 Ib. 169; Orton v. Smith, 18 How. 263; Munson v. Munson, 28 Conn. 582; Gamble v. Loop, 14 Wis. 465; Moore v. Cord, Ib. 213; Farnham v. Campbell, 34 N.Y. 480; Wells v. Buffalo, 80 Ib. 253; Lehman v. Roberts, 86 Ib. 232; King v. Townshend, 141 N.Y. 358; Browning v. Lavender, 104 N.C. 69. (2) Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. Sec. 650, R. S. 1899. Bills quia timet answer to the brevia anticipantia of common law. A bill quia timet is an equitable remedy insuring rights. Bispham Principles of Equity, sec. 568.
This is a bill in equity to cancel an assessment of two hundred and fifty dollars, special benefits charged against the plaintiff's lot in city block 3909, fronting one hundred feet on Maryland avenue, caused to accrue by reason of the opening of Newstead avenue from Olive street to McPherson avenue, under ordinance No. 15670. There is no defect, irregularity or infirmity suggested in the proceedings under which the special benefit was charged on the property. The sole ground alleged in the petition for the relief sought is that the matter is barred by limitation, under section 6775, Revised Statutes 1889. The petition also contains a second count, which is similar in nearly all respects to the first count, but which contains the averment "that this action is instituted to ascertain and determine the estate, title and interest of the plaintiffs and the defendant, respectively, in said real estate," and the prayer of which is that the court adjudge the interest of the parties, and decree a fee simple title to the plaintiffs, free from any lien or interest of the defendant. The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer. The plaintiffs refused to plead further. Judgment was entered for defendant, and the plaintiffs appealed.
I.
The sole allegation of the plaintiff's petition is, that the special benefits assessed against the plaintiff's property constitute simply a special taxbill and that it is barred by limitation, under section 6775, Revised Statutes 1889. The case was tried by the plaintiff upon this theory alone, in the lower court. Upon the oral argument in this court it was suggested that the special benefits were not simply in the shape of a special tax-bill but that they were in form and effect a judgment of the circuit court, and that judgments were expressly excepted by the terms of section 6775, Revised Statutes 1889, and that judgments are not barred until the expiration of ten years, and may be kept alive forever if revived within successive periods of ten years. [Sec. 6013, R. S. 1889.] In avoidance of this suggestion the plaintiffs now contend that the special benefits, if a judgment, constitute only a lien on the land, and that under section 6012, Revised Statutes 1889 (sec. 3714, R. S. 1899), the lien of a judgment continues only three years, and that this lien was over three years old when this suit was begun.
These considerations necessitate a review of the law under which in the city of St. Louis a special benefit may be charged upon the property of a citizen for the opening of a street.
Section 2 of article 6 of the charter of St. Louis provides that the assembly, upon the unanimous recommendation of the board of public improvements or upon the petition of the owners of the major portion of the ground fronting thereon, may pass an ordinance for the opening of a street, etc., and that thereupon the city counselor, in the name of the city, shall apply to the circuit court, "by petition setting forth the general nature of the improvement proposed to be made, the names of the owners of the several lots or parcels of land, if known, or if unknown a correct description of the parcels whose owners are unknown, and praying the appointment of three disinterested commissioners, freeholders of property in said city, to assess the damages which said owners may severally sustain by reason of the appropriation and condemnation of such real estate by the city, for any of the purposes aforesaid, to which petition the owners of all such lots or parcels of land embraced in the proposed improvement shall be made parties defendant by name, if the names are known, and by description of land of unknown owners."
Section 3 of article 6 of that charter provides that upon the filing of such a petition a summons shall be issued, giving the defendants ten days' notice of the time when the petition will be heard, and provides that the city marshal shall serve the summons "in the same manner as writs of summons are or may be by law required to be served," and also provides for a notice by publication for four weeks to all unknown and non-resident owners.
Section 4 of article 6 provides that upon being satisfied that due notice has been given, the court, or judge in vacation, shall appoint three disinterested commissioners, freeholders in said city and residents thereof for five years next before their appointment, "to assess the damages which the owners of the land may severally sustain by reason of such appropriation."
Section 5 of article 6 provides: etc.
Section 6 of article 6 requires the commissioners to view the property, assess the value and damages and benefits and make their report under oath, assessing separately "the damages allowed to each owner, and the benefits assessed against each individual."
Section 7 of article 6 provides: "The report of said commissioners may be reviewed by the circuit court on written exceptions filed by either party in the clerk's office, within ten days after the filing of such report, and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown; but the hearing of such exceptions shall be summary, and the court shall fix a day therefor without delay, upon the filing of any such exceptions, or within ten days after the expiration of the time given said city to report the same to the assembly as hereinafter provided."
Section 8 of article 6 provides that the city shall pay the costs of the proceeding up to the filing of the exceptions, and any subsequent costs shall be paid by the losing party.
Section 9 of...
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