Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co.
| Decision Date | 03 December 1912 |
| Docket Number | 12563 |
| Citation | 151 S.W. 479,168 Mo.App. 468 |
| Parties | GRANITE BITUMINOUS PAVING COMPANY, Respondent, v. PARKVIEW REALTY & IMPROVEMENT COMPANY et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
JUDGMENT MODIFIED AND AFFIRMED AND CAUSE REMANDED (with directions).
CAUSE CERTIFIED TO SUPREME COURT.
Bland & Cave and Carter, Collins, Jones & Barker for appellants.
(1) The Charter lien of a taxbill 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, 129 S.W. 1031; Cook Case, 101 Ind. 446; Aetna Case, 117 Ind. 251; Pierce Case, 131 Ind. 284; Lovelass, 133 Ind. 600; Pittsburgh Appeal, 40 Pa. 457; Martin v. Greenwood, 27 Pa. Sup. 245; Seattle v Hill, 14 Wash. 487, 489; O'Niel v Duringer, 31 N.J.Eq. 510; 27 Cyc. 1176; Hamilton on Special Assessments, Sec. 708; Elliott Roads and Streets, Secs. 543, 547, 599. (2) But admitting such priority, still, in a suit to foreclose the lien of a taxbill, it is necessary to make one whose interest in the land is sought to be subjected to such a lien, a party therto, and this is unquestionably true where, as here, in the case of the cestui que trustent in the deeds of trust, he is a record owner. Perkinson v. Meredith, 158 Mo. 464; Jaicks v. Sullivan, 128 Mo. 177; Paving Co. 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; Foeny v. Homes, 65 Mo.App. 114; Eyerman v. Scollay, 16 Mo.App. 498; St. Joseph v. Baker, 86 Mo.App. 310; 113 Mo.App. 691. (3) 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; McLaran v. Railroad 126 Mo.App. 245. (4) (a) The lien of any taxbill 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 St. Louis. (b) And where suit is commenced wthin 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. 114; Jaicks v. Sullivan, 128 Mo. 177; Smith v. Barrett, 41 Mo.App. 460; St. Joseph ex rel. v. Baker, 113 Mo.App. 691; St. Joseph v. Baker, 86 Mo.App. 310; Eyerman v. Scollay, supra; Smith v. Boese, 39 Mo.App. 15; Badger L. C. v. Staley, 125 S.W. 779; Parker-Washington Company v. Kemper, 128 S.W. 271. (6) The judgment bearing eight per cent is in conflict with Sec. 7179, R. S. 1909 and erroneous. Gilsonite Roofing and Paving Co. v. Association, 132 S.W. 657.
Sturdevant & Sturdevant and Charles W. Bates for respondent.
(1) Special taxes lie general taxes are created in the exercise of the taxing power of the State, and in no other manner. The liens of special and general taxes upon land are identical as to the subject to which the lien attaches, and the scope and effect of the lien. In both instances the lien of the tax attaches to the land itself to the res, and binds all interests in the land and is superior to all. When the land taxed is subject to an existing mortgage, or other incumbrance resting upon contract, the lien of the tax supersedes such incumbrance, and becomes senior thereto; and in such cases the lien of the junior lienholder is a lien only upon the equity of redemption of the owner of the land, which gives him the right to redeem and protect himself against the paramount lien of the tax. On the foreclosure of such tax lien, the owner of the land is an indispensable party to a valid judgment foreclosing his equity of redemption; the plaintiff may likewise foreclose and bar all equities of redemption of the junior incumbrancer by making him a party, also, to the foreclosure; or, if he elects, may waive the right to bar and foreclose such equity of redemption of the junior lienholder by omitting him from the suit, in which event he may redeem from the purchaser under the foreclosure of the tax lien. And when the senior tax lien is foreclosed in such manner and the land sold to satisfy such lien, the purchaser at such sale acquires a fee simple title to the land. Keating v. Craig, 73 Mo. 507; Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Allen v. McCabe, 93 Mo. 138. Land & Lumber Co. v. Bippins, 200 Mo. 688; Engineering & Const. Co. v. Ice Rink Co., ___ S.W. ___ (2) Junior lienholders are not necessary parties to a suit foreclosing the lien of a special taxbill. Valentine v. Havener, 20 Mo. 133; Talbott v. Roe, 171 Mo. 432; Jones on Mortgages, 6 Ed., par. 1395-6; Wiltse, Mortg. Foreclosure, pp. 190 and 191; Haines v. Beach, 3 John. Ch. 459; Tug River Coal, etc. v. Brigel, 86 F. 818; Davis v. Trust Co., 152 U.S. 590; Corrigan v. Bell, 73 Mo. 53; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 524; 27 Cyc. 1563 and notes; Page and Jones on Taxation by Assessment, secs. 1123-1225. (3) The right of a junior lienholder, who was not a party to the suit, foreclosing a senior lien, is a right to redeem, and that only; and this is, of course, trus as to all bondholders and beneficiaries for whose benefit the junior lien is held. Wiltse on Mortg. Foreclosure, pp. 190, 191, par. 160; Jones on Mortg., secs. 1203, 1396, 1426; Stafford v. Fizer, 82 Mo. 393; Rothenberger v. Garrett, 224 Mo. 197; Williams v. Hudson, 93 Mo. 524; Allen v. McCabe, 93 Mo. 138; Keating v. Craig, 73 Mo. 509. (4) Under the Charter of St. Louis and adjudications thereon the owner of the property to which the lien of the taxbill attaches is a necessary party, that is, a wholly indispensable party, to a suit foreclosing such lien, and unless such owner is a party to the suit any judgment therein establishing a lien is void. Barnett, etc. v. Board of Public Schools, 61 Mo.App. 542; Perkinson v. Meredith, 158 Mo. 464; City of St. Louis v. Bernoudy, 43 Mo. 552; Jacks v. Sullivan, 128 Mo. 177. (5) On the other hand, it is equally well settled by adjudication that the beneficiary in a deed of trust, or mortgage, is not a necessary party to a suit foreclosing the lien of a special taxbill. Upon this it follows that such trustee or mortgagee is, therefore, not an owner within the meaning and purpose of that term as used in our Charter and the law making owners necessary parties to such foreclosure. City of St. Louis v. Bernoudy, 43 Mo. 552; Olmstead v. Tarsney, 69 Mo. 396; Keating v. Craig, 73 Mo. 507; Gitchell v. Kreidler, 84 Mo. 472; Allen v. McCabe, 93 Mo. 138. (6) Where the judgment rendered is for the correct amount of principal and interest due at the time of its rendition, the fact that such judgment provides that it shall bear a higher rate of interest than the law permits from the date of its rendition is not such an error as would justify reversal. The excessive interest so provided for can be remitted by plaintiff or corrected by the court and the judgment affirmed for the correct rate of interest. 3 Cyc. 434; State v. Hope, 121 Mo. 34; Kimes v. St. Louis, 85 Mo. 611; Franklin v. Haynes, 119 Mo. 566.
NORTONI, J., dissenting.
ON MOTION FOR REHEARING.
--This is a suit on a special taxbill issued in pursuance of the Charter provisions of the city of St. Louis relating to street improvements. The suit was tried by the circuit court without the intervention of a jury, and resulted in a judgment for plaintiff in the sum of $ 1615.25, with interest at the rate of eight per centum per annum from date, charging the lot against which said taxbill was issued with the amount of the judgment, interest and costs, and ordering the sheriff of the city of St. Louis to sell the same to satisfy the amount thus found to be due.
From this judgment all the defendants appealed, assigning for error that the judgment was against the law and the evidence, was excessive, as far as the interest was concerned, and was erroneous because the taxbill was barred by limitation, as far as all defendants were concerned, save the Parkview Realty and Improvement Co., who had ceased to be an owner, its title having been divested prior to the trial of the case by foreclosure proceedings.
The appeal was heard at the last term of this court and resulted in a reversal of the judgment. Upon a motion for rehearing filed by respondent, some doubts were entertained by the court as to the correctness of that ruling, and in view of the grave importance of the question to the municipality as well as to individual owners of real property within the city, full argument on the motion for rehearing was ordered at the present term. One of the judges being disqualified to sit, the undersigned was, with the consent of all parties, appointed special judge.
In order to pass intelligently upon the contention of the defendants, that the judgment is erroneous, for reasons hereinabove stated, it is necessary to set out certain provisions of the Charter of the city of St. Louis relating to street improvement.
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