German-American Bank v. Manning

• Decision Date: 05 November 1908
• Citation: 113 S.W. 251,133 Mo. App. 294
• Parties: GERMAN-AMERICAN BANK v. MANNING et al.
• Court: Missouri Court of Appeals

113 S.W. 251

133 Mo. App. 294

GERMAN-AMERICAN BANK v. MANNING et al.

St. Louis Court of Appeals. Missouri.

November 5, 1908.

1. TRIAL (§ 51) — RECEPTION OF EVIDENCE.

Where a tax bill was received in evidence subject to objection and not afterwards excluded, it must be treated as properly before the court.

2. TRIAL (§ 386) — TRIAL BY COURT — DECLARATIONS OF LAW — MATERIALITY OF ALTERATION.

Where a tax bill was altered in one of the calls of the description and its materiality depended on extrinsic facts, a requested declaration of law that the alteration was not material, and did not affect the validity of the bill, called for a declaration on an issue of fact.

3. ALTERATION OF INSTRUMENTS (§ 16) — TAX BILLS — TIME — EFFECT.

An alteration of the description in a tax bill made after delivery would prima facie nullify the bill, though it may have described the same lot described by the original words.

4. ALTERATION OF INSTRUMENTS (§ 27) — TIME — PRESUMPTION.

Unless the alteration of an instrument is suspicious, it will be presumed to have been made before the instrument was issued or delivered.

5. ALTERATION OF INSTRUMENTS (§ 24) — TIME — SUSPICION — EVIDENCE.

Where an interlineation in a description in a tax bill was in different writing from words erased, such fact was sufficient to excite suspicion and justify the court in requiring evidence that the alteration was bona fide before admitting the tax bill in evidence, and, the bill having been admitted, it was still a question for the court as to whether the erasure and interlineation were made before the issuance and delivery of the bill, and whether, in the absence of evidence of the consent of all parties to the change, it invalidated the bill.

6. MUNICIPAL CORPORATIONS (§ 567) — IMPROVEMENTS — TAX BILLS — ACTION — DESCRIPTION — VARIANCE.

A tax bill against defendant M. originally described the land as "lot No. Pt. 28 in City Block No. 5149, said ground having an aggregate front of 30.00 feet by a depth of 137.50 bounded north by Page Bl. east by Birkbeck R. E. & I. Co., south by alley and west by Ætna Loan Company." The bill as introduced in evidence showed the words, "Birkbeck, R. E. & I. Co.," crossed out, and after them the words, "now Dennis," interlined in different handwriting. The petition to foreclose the bill alleged that defendant M., against whom it was issued, owned the west 29 feet and 2 inches of lot 28 and the east 10 inches of lot 26 of Raymond Place on the date of the bill. Held, that there was a fatal variance between the description in the tax bill, both as originally drawn and as altered, and the description in the petition.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by the German-American Bank against Ella E. Manning and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Kehr & Tittman, for appellant. Abbott & Edwards, for respondents.

GOODE, J.

This is an action on a special tax bill for street improvements against a lot in the city of St. Louis. The petition alleges defendant Ella E. Manning was the owner of the lot at the date of the bill, and describes the property as the west 29 feet 2 inches of lot 28, and the east 10 inches of lot 27 of Raymond Place, in the city of St. Louis, fronting 30 feet on the south line of Page boulevard by a depth southwardly of 137 feet 6 inches, bounded north by Page boulevard, east by Dennis, south by an alley, and west by the Ætna Loan Company. It is alleged the property was subject to a deed of trust to defendant Abbott to secure a debt to defendant Buerman. The other essential allegations of a petition on a special tax bill are made, but need not be recited. When the tax bill was offered in evidence, defendant objected because the lot described in it and the one described in the petition were not the same; and because the tax bill bore on its face an unexplained alteration in the handwriting of another person than the one who made it out. The court admitted the bill, subject to the objection, and it was read in evidence. In its material parts it is as follows:

                "No. 1456.     Special Tax Bill
                "Office of the President of the Board of Public
                              Improvements
                               "St. Louis, June 22, 1903
                "Ella E. Manning, Owner, to Gilsonite Construction
                    Company, Contractor, Dr
                

"For work done on Page Blvd. from Kings-highway Blvd. to Union Blvd. Chargeable against lot No. Pt. 28 in City Block No. 5149, said ground having an aggregate front of 30.00 feet by a depth of 137.50 feet, bounded north by Page Bl., east by Birkbeck R. E. & I. Co. now Dennis, south by alley, and west by Ætna Loan Co.

"Under authority of the charter and of Ordinance No. 20,722 and of Contract No. 6249.

                Frontage tax against the lot......... $ 53.16
                Area tax against the lot.............  150.69
                                                      _______
                                                      $203.85
                

"With coupons from 2 to 7, inclusive, of $29.12 each, attached.

"I hereby certify that the above-mentioned work, as shown by the certificate of the street commissioner on file in this office, was done by the above-mentioned contractor according to contract prices, and that I have caused the computation herein set forth to be made, and that I have assessed against the above-mentioned lot the amount, viz.: Two hundred three and 85.100 dollars, as being the special tax levied against said lot and to be paid by the person herein named as the owner of the land.

                  "Registered and countersigned by
                                     "Hiram Philips
                     "President of the Board of Public

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