Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co.

• Decision Date: 05 February 1918
• Citation: 201 S.W. 933,199 Mo.App. 226
• Parties: GRANITE BITUMINOUS PAVING CO., Respondent, v. PARKVIEW REALTY & IMPROVEMENT COMPANY ET AL., Appellants
• Court: Missouri Court of Appeals

201 S.W. 933

199 Mo.App. 226

GRANITE BITUMINOUS PAVING CO., Respondent, v. PARKVIEW REALTY & IMPROVEMENT COMPANY ET AL., Appellants

Court of Appeals of Missouri, St. Louis

February 5, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon. Eugene McQuillin, Judge.

REVERSED.

Judgment reversed.

Collins Barker & Britton for appellant.

(1) When the Supreme Court on a proper transfer has jurisdiction of a cause, it will hear and determine the entire cause and not merely dispose of the point of difference in the Court of Appeals. Sutton v. Cole, 155 Mo. 206; Fulkerson v. Murdock, 123 Mo. 292. (2) The charter lien of a tax bill issued July 1, 1905, for work done under an ordinance enacted in February, 1903, and which could under no possible theory have become a lien prior to said February 1903, has no priority over the lien of deeds of trust executed and recorded in 1902 and 1901. Art. 6, sec. 24 Charter, city of St. Louis; Parker Washington Company v Corcoran, 150 Mo.App. 188; Cook Case, 101 Ind. 446; Aetna Case, 117 Ind. 251; Pierce Case, 131 Ind. 284; Lovelace Case, 133 Ind. 600; Pittsburgh Appeal, 40 Pa. 457; Martin v. Greenwood, 27 Pa. Sup. 245-251; Seattle v. Hill, 14 Wash. 487, 489; O'Neil v. Duringer, 31 N.J.Eq. 510; 27 Cyc, 1176; Hamilton on Special Assessments, sec. 708; Elliott Roads and Streets, secs. 543, 547-599; Dissenting Opinion of Kennish, Judge, in Morey Engineering & C. Co. v. Ice Rink, 242 Mo. 241, and authorities cited; Dissenting Opinion of Walker, Judge, in Jaicks v. Oppenheimer, 175 S.W. 972, and authorities cited; Same case, 168 S.W. 216; Wood v. Brady, 68 Cal. 78; Wood v. Curran, 99 Cal. 137. (3) But, even if such priority were admitted, still, in a suit to foreclose the lien of a tax bill, it is necessary to make one whose interest in the land is sought to be subjected to such a lien, a party thereto, and this is unquestionably true where, as here, in the case of the cestuis que trustent in the deeds of trust, he is a record owner. If not made a party the judgment is as to him of no force or effect whatever, and as if never entered. Perkinson v. Meredith, 158 Mo. 464; Jaicks v. Sullivan, 128 Mo. 177; Paving Company v. Peck, 186 Mo. 520; Corrigan v. Bell, 73 Mo. 53; City v. Bernoudy, 43 Mo. 552; Newman v. City of St. Joseph, 126 Mo. 96; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 524; Stafford v. Fizer, 82 Mo. 393; Smith v. Barrett, 41 Mo.App. 460; Forrey v. Holmes, 65 Mo.App. 114; Eyermann v. Scollay, 16 Mo.App. 498; St. Joseph v. Baker, 86 Mo.App. 310, 113 Mo.App. 691; Olmstead v. Tarsney, 69 Mo. 396; Kirkwood v. Handlan, 182 Mo.App. 636; Utah Implement & Vehicle Co. v. Bowman, 209 F. 942; Page v. Chase Co., 145 Cal. 582; Wood v. Brady, 68 Cal 78; Wood v. Curran, 99 Cal. 137; Brady v. Burke, 90 Cal. 1; Lumber Co. v. Schafer, 251 Mo. 53. Nor is it sufficient, to charge the interest of a cestui que trust in a deed of trust, that the trustee be made a party. Perkinson v. Meredith, supra. Jaicks v. Sullivan, supra; Corrigan v. Bell, supra; St. Louis v. Bernoudy, supra; Williams v. Hudson, supra; Stafford v. Fizer, supra; Keating v. Craig, 73 Mo. 507; McLaren v. International Company, 126 Mo.App. 254. And other cases cited under Point 3, supra. (4) (a) The lien of any tax bill that is not entered satisfied within two years after its maturity, unless proceedings in law shall have been commenced to collect same within that time and shall still be pending, shall be destroyed and of no effect against the land charged therewith. Art. 6, sec. 25, Charter of the city of St. Louis. (b) And where suit is commenced within that period against certain defendants and other defendants are brought in after the expiration of two years, no judgment can be rendered against the latter parties or their interest. Forrey v. Holmes, 65 Mo.App. (K. C.) 114; Jaicks v. Sullivan, 128 Mo. 177; Smith v. Barrett, 41 Mo.App. 460; St. Joseph ex rel. v. Baker, 113 Mo.App. (K. C.) 691; St. Joseph v. Baker, 86 Mo.App. 310; Eyermann v. Scollay, supra; Smith v. Boese, 39 Mo.App. 15; Badger L. C. v. Staley (Feb. 7, 1910, K. C. C. of A.), 125 S.W. 779, 141 A. 295; Lumber Co. v. Schofer, 251 Mo. 539; Parker Washington Company v. Kemper (May 9, 1910, K. C. C. of A.), 128 S.W. 271; Hiller v. Schulte, 184 Mo.App. 42; McLaren v. R. E. & I. Co., 126 Mo.App. 254; Utah I. & V. Co. v. Bowman, 209 F. 942; Construrtion Co. v. Greffet. 174 Mo.App. 188; Page v. Chase, 145 Cal. 582; Wood v. Brady, 68 Cal. 78; Wood v. Curran, 99 Cal. 137; Brady v. Burke, 90 Cal. 1. (5) The judgment bearing eight per cent. is in conflict with section 7189, R. S. 1909, and erroneous. Gilsonite Roofing and Paving Company v. St. Louis Fair Grounds Association (Mo. Sup. Nov. 12, 1910), 132 S.W. 657. (6) The judgment including therein interest on the several installments at eight per cent from August 19, 1905, to date of judgment was erroneous. The installments only draw six per cent. up to date of their maturities as fixed by the tax bill itself. The judgment, therefore, appears excessive from the face of the record. Eyermann v. Stevens (St. L. C. of A.), 170 S.W. 330. (7) The two tax bills, Nos. 3655 and 3648, sued on in cases Nos. 17593 and 17594 (Court of Appeals Nos. 12561 and 12562), issued against one lot are void. Barnetts Ex. v. Board of P. Schools, 61 Mo.App. 539-42 (Opinion by Rombauer); Bircher v. Bircher, 204 Mo. 562; Savings Bank v. Tracy, 141 Mo. 258-9.

Sturdevant & Sturdevant for respondent.

(1) Special assessments for local improvements in Missouri are referable to and sustainable under the taxing power of the State. Garrett v. St. Louis, 25 Mo. 505; Heman v. Allen, 156 Mo. 534; Barber Asphalt Co. v French, 158 Mo. 534; Construction Co. v. Shovel Co., 211 Mo. 531; Construction Co. v. Railroad, 206 Mo. 179; Morrison v. Morey, 146 Mo. 543; Cooley on Taxation, 623. They are also sustainable under the police power. Morrison v. Morey, 146 Mo. 543. (2) The lien of general taxes, because of their purpose and nature, is superior to all pre-existing contract or judgment liens unless especially provided otherwise by statute. Osterberg v. Union Trust Co., 93 U.S. 428; Stafford v. Fizer, 82 Mo. 393; Jack v. Weiennett, 115 Ill. 105, 110; Gitchell v. Kreidler, 84 Mo. 472; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 524; Morey Engineering Co. v. Ice Rink, 242 Mo. 241. (3) Special taxes can only be created in the exercise of a governmental function. In this respect they are like general taxes. The lien of such taxes under the charter of St. Louis and the laws of Missouri generally, attaches to the subject of taxation, to the res, the estate itself, and the entire estate is bound regardless of the condition of the title. No form of incumbrance prior or subsequent, in the nature of contract or judgment liens, can prevent the exercise of the taxing power of the State over the subject and the whole subject. Keating v. Craig, 73 Mo. 507; Excelsior Springs v. Henry, 99 Mo.App. 450; Corrigan v. Bell, 73 Mo. 53; Wabash v. East Lake, 134 Ill. 384, 399; 10 L. R. A. 291; Dressman v. Bank, 100 Ky. 571, 573, et seq.; Osterberg v. Union Trust Co., 93 U.S. 424; Morey v. Duluth, 75 Minn. 221; Seattle v. Hill, 14 Washington, 487; 35 L. R. A. 372, and note; Pittsburg's Appeal, 70 Pa. St. 142; Allegheny Cities' Appeal, 41 Pa. St. 60; Ready v. Burke, 90 Cal. 1; Cooley on Taxation, 623; Charter v. City of St. Louis, article 6, secs. 14 and 25; Stafford v. Fizer, 82 Mo. 393; State v. Railroad, 77 Mo. 202, 220-221; Jaicks v. Sullivan, 128 Mo. 177; Perkinson v. Meredith, 158 Mo. 457, 464-465; Dresman v. Smirnia, 104 Ky. 693; O'Dea v. Witchell, 144 Cal. 382-383; Chase v. Trout, 146 Cal. 365; Tybaso v. Ft. Myers, 56 Fla. 817; Richmond v. Williams, 102 Va. 733; Norwich v. Hubbard, 22 Conn. 587; State v. Kilburn, 81 Conn. 9; Auditor General v. Bishop, 161 Mich. 122; Dale v. McEvers, 2 Cowen, (N. Y.) 118; Warner v. Van. Alstyne, 3 Paige (N. Y.) 513; Clifton v. Cincinnati, 6 Am. Law. Rec. (Ohio) 687; Morlein v. Westmeier, 4 Ohio, C. C. 299; Corporation of Birmingham, L. R. 17 Ch. D. 782. (4) Since the adoption of our Constitution in 1821, the Legislature has enacted many laws relative to both general and special taxes and in providing for the lien of such taxes it has with great uniformity provided, merely that such taxes should constitute a "lien," using the latter term without qualifying words either to enlarge or restrict its meaning. Our Supreme Court has a number of times held that the lien of the State for taxes takes precedence of and is superior to all other liens whether prior or subsequent, and has therefore determined the legislative intent to create a first lien by the use only of the word "lien" in reference to the effect of a tax lien. Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 475; Allen v. McCabe, 93 Mo. 144 and 145; Williams v. Hudson, 93 Mo. 529. The same effect has been given to the word "lien" by adjudication in this State relative to special taxes. Excelsior Springs v. Henry, 99 Mo.App. 450; Keating v. Craig, 73 Mo. 507; Perkinson v. Meredith, 158 Mo. 457. Other jurisdictions have adopted a like construction of statutes containing the same or similar terms relative to local taxation. If the legislative intent to give priority to special tax liens is apparent, it is not necessary that the statute should so provide in express terms. It is sufficient if the intention can be gathered from the general provisions and the purposes of the statute. Seattle v. Hill, 14 Wash. 487; Wabash, etc. v. Eastlake, etc., 134 Ill. 399; Storrie v. Houston St. Ry. Co., 92 Tex. 129. All statutory provisions on the general subject may be construed together for the purpose of gathering the legislative intent and a construction may be adopted consistent with the objects to...