Granite Bituminous Paving Co. v. McManus

• Decision Date: 01 June 1912
• Citation: 148 S.W. 621
• Parties: GRANITE BITUMINOUS PAVING CO. v. McMANUS et al.
• Court: Missouri Supreme Court

148 S.W. 621

GRANITE BITUMINOUS PAVING CO. v. McMANUS et al.

Supreme Court of Missouri, Division No. 2.

June 1, 1912.

Rehearing Denied June 20, 1912.

1. DEDICATION (§ 29)—STATUTORY DEDICATION— NULLIFICATION.

A plat of a subdivision in a city was nullified as a statutory dedication of streets indicated thereon, by foreclosure under a deed of trust which incumbered the land at the time the plat was filed.

2. DEDICATION (§ 39)—ESTOPPEL.

Where a plat of a subdivision in a city was nullified as a statutory dedication of the streets indicated thereon by foreclosure of a deed of trust which incumbered the property when the plat was filed, the taking by the purchaser at the foreclosure sale of quitclaim deeds for lots described according to the plat did not commit her to recognition of such streets.

3. DEDICATION (§ 39)—ESTOPPEL.

Where a plat of a subdivision in a city was nullified as a statutory dedication of the streets indicated thereon by mortgage foreclosure, the fact that thereafter property continued to be assessed for taxation by lot numbers, as shown on the plat, does not estop an owner to deny any common-law dedication of the streets.

4. DEDICATION (§ 33)—ACCEPTANCE—POWER —TAX ASSESSORS.

A tax assessor is without power to accept a dedication of a street; such matter not belonging to his department.

5. DEDICATION (§ 44) — EVIDENCE — SUFFICIENCY.

Evidence held insufficient to show an intent by the owner to dedicate land as a street or, on the part of the city, to accept.

6. MUNICIPAL CORPORATIONS (§ 485)—LOCAL IMPROVEMENTS—TAX BILLS—REQUISITES.

The provision of St. Louis Charter, art. 6, § 24, requiring a tax bill to name the city treasurer, or some bank or trust company in the city, to whom payment shall be made, is only directory, and omission to comply therewith does not invalidate a bill, especially as to an owner who had notice of the place of payment.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the Granite Bituminous Paving Company against Thomas Ward McManus and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This action was begun in the circuit court of the city of St. Louis for the enforcement of a special tax lien against the north half of city block 3,920 for the construction of West Pine boulevard, which runs along the north boundary of the property. There was a judgment for the plaintiff, and the defendants have appealed.

We will not set out the pleadings, as they are broad enough to include all propositions covered by the evidence. In 1874 Robert Baker was the owner of all of said block, which was 1,366.17 feet long east and west, by 446 feet 4½ inches north and south, containing about 14 acres. In that year he executed a deed of trust on the property to Robert W. Powell as trustee to secure the payment of a debt therein described, which deed was at once recorded. In 1877 Baker filed for record a duly executed plat of subdivision of that block into 216 lots, and showing a new street marked thereon as "West avenue," running east and west through the center of the block, and 46 feet 4½ inches wide. That plat showed four rows of lots, 54 in each row; each lot being a hundred feet long, one row fronting north on West Pine boulevard, two rows fronting on West avenue, and one row fronting south on Laclede avenue. After filing the plat, Baker sold several lots fronting on Laclede avenue to different purchasers, some of whom built residences on thé lots bought by them. In 1878, after such sale of lots, the deed of trust was foreclosed, and Camilla S. McManus, who was the original defendant, became the purchaser and received the trustee's deed in which the property was described as lot 25 of Peter Lindell's Second addition to St. Louis, which was the original description of said city block 3,920. From 1877 to 1885 the property was assessed and the taxes paid thereon by lots as shown on the plat of Baker's subdivision. After 1885, so far as shown, that block, 3,920, was assessed to Mrs. McManus as acre property, and the taxes were paid in that way. In 1880, Mrs. McManus took quitclaim deeds from two of the purchasers for lots that had been sold by Baker as above stated. One of those deeds described two lots, and the other, one. Prior to the trial, Mrs. McManus died, and the present defendants were made parties as her devisees.

The defendant Thomas W. McManus testified in effect that he managed the property for his mother, and that 10 years before the trial there was a fence around the land with a wire across the entrance to what would be West avenue at Vandeventer avenue on the east side of the block. People went in and out by using the wire as a gate. There was a space left out of the sidewalk at that entrance, which was paved with granite continuous with the granite pavement on Vandeventer avenue. A gate was there before the foreclosure sale and remained there until it wasted away. The property was used for pasture and for...