Kansas City v. Tiernan, 39763.

• Citation: 202 S.W.2d 20
• Decision Date: 10 March 1947
• Docket Number: No. 39763.,39763.
• Parties: KANSAS CITY, MISSOURI, a Municipal Corporation, Appellant, v. ELIZABETH F. TIERNAN, ELIZABETH WALTERS, THE MUNICIPAL BOND CORPORATION, ALVIN D. HATTEN, Collector of Jackson County, and ARTHUR J. BAXTER.
• Court: United States State Supreme Court of Missouri

202 S.W.2d 20 KANSAS CITY, MISSOURI, a Municipal Corporation, Appellant,
v.
ELIZABETH F. TIERNAN, ELIZABETH WALTERS, THE MUNICIPAL BOND CORPORATION, ALVIN D. HATTEN, Collector of Jackson County, and ARTHUR J. BAXTER. No. 39763. Supreme Court of Missouri. Division One, March 10, 1947. Rehearing Denied, April 21, 1947.

Appeal from Jackson Circuit Court. — Hon. Emory H. Wright, Judge.

AFFIRMED.

[202 S.W.2d 21]

David M. Proctor, Benj. M. Powers and Lancie L. Watts for appellant.

(1) The court erred in ruling that the judgment on December 1, 1928, was barred by the statute of limitations of the State of Missouri, viz.: Sec. 1038, Chap. 6, Art. 9, R.S. 1939, as extended by Section 1, Session Laws of 1919, page 221, and in ruling that the special execution issued on said judgment under date of June 2, 1942, the sheriff's sale thereunder on June 29, 1942, and the sheriff's deed of June 30, 1943, were void. Sec. 1038, R.S. 1939; Secs. 157, 160, Art. VI, Charter of Kansas City; Sec. 1, Laws 1919; Art. VI, Secs. 7, 22, Charter of 1908, Kansas City; Kansas City v. Field, 194 S.W. 39, 270 Mo. 500; Id., 226 S.W. 27; Kansas City v. Boruff, 243 S.W. 167; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. McTernan, 308 Mo. 494, 273 S.W. 105; Brunn v. Kansas City, 216 Mo. 108. (2) The charge that irregularities exist in the execution and in the proceedings leading up to the execution, is a collateral attack, and cannot be taken advantage of by the defendant in the present proceedings. Lovitt v. Russell, 138 Mo. 474; Landes v. Perkins, 12 Mo. 238; Groner v. Smith, 49 Mo. 318; Waddell v. Williams, 50 Mo. 216; Holland v. Adair, 55 Mo. 40; Kane v. McCowan, 55 Mo. 181; Hewitt v. Weatherby, 57 Mo. 276; Lewis v. Combs, 60 Mo. 44. (3) The court erred in finding that the tax deed set forth and described in plaintiff's petition, based upon the sale of the real property therein described for the delinquent city taxes for the year 1933, was invalid as a conveyance of the title to the plaintiff. State ex rel. v. Baumann, 153 S.W. (2d) 31; Buder v. Hughes, 166 S.W. (2d) 516; Sec. 11152, R.S. 1939; Sec. 377, Art. XII, Charter of Kansas City. (4) The court erred in holding that the plaintiff had adequate remedies at law under the charter of Kansas City, and under the statutes of Missouri, for the enforcement and foreclosure of tax liens held by plaintiff, and in holding that the circuit court had no jurisdiction in the case because the action is in equity. Lovitt v. Russell, 135 Mo. 474; Fancher v. Prock, 337 Mo. 1119, 88 S.W. (2d) 179; Sec. 383, Charter of Kansas City; Hauser v. Murray, 256 Mo. 58; Wolfersberger v. Hoppenjon, 334 Mo. 817, 68 S.W. (2d) 814; Bates v. Comstock Realty Co., 306 Mo. 312, 267 S.W. 641.

Dwight M. Smith for respondent.

(1) The trial court properly held and decided that the judgment rendered December 1, 1928, confirming verdicts of jury in condemnation proceedings, was barred by 10-year statute of limitations (Sec. 1038, Chap. 6, Art. 9, R.S. 1939, as extended (if extended) by Section 1, Session Laws, 1919), and properly ruled and held that the special execution issued on said judgment under date June 2, 1942, and the sheriff's sale and sheriff's deed issued thereunder were void. Kansas City v. Jones Store Co., 28 S.W. (2d) 1008; Rosenzweig v. Ferguson, 348 Mo. 144, 158 S.W. (2d) 124; Kansas City v. Field, 270 Mo. 500, 194 S.W. 39; Kansas City v. Field, 285 Mo. 253, 226 S.W. 27; Schwab v. St. Louis, 310 Mo. 116, 274 S.W. 1058; Hedges v. McKittrick, 153 S.W. (2d) 790; Kansas City v. Block, 175 Mo. 433, 74 S.W. 993; City of St. Louis v. Dietering, 27 S.W. (2d) 711; Gary v. Swinney, 306 Mo. 592, 17 S.W. (2d) 505; Sec. 158, Art. IV, K.C. Charter, 1926; State ex rel. Kansas City v. School Dist. of Kansas City, 333 Mo. 288, 62 S.W. (2d) 813; Laws 1919, p. 221. (2) Section 157, Article VI, of the Kansas City Charter, properly construed, does not contemplate changing maturity dates of installments of judgment of the circuit court after affirmance by Supreme Court, and if construed to authorize changes in such judgment, would be illegal, null and void. Sec. 157, Art. VI, Kansas City Charter, 1926; Huggins v. Caldwell, 3 S.W. (2d) 1101, 223 Ky. 468; Ohio Fuel Gas Co. v. City of Mt. Vernon, 174 N.E. 260; Houtchens v. Mercer, 29 S.W. (2d) 1031; Boardman v. State, 233 N.W. 556; Moorecock v. Hood, 162 S.W. 730; Sec. 159, Art. VI, Kansas City Charter. (3) Statutes of limitations emanate from, and represent the public policy of the state, as declared by the general assembly, and supersede charter provision in conflict therewith, as relating to judgments of courts of record. 17 R.C.L. sec. 7, p. 669; 37 C.J. sec. 2, p. 85; Kansas City v. J.I. Case Thresh, Mach. Co., 337 Mo. 913, 87 S.W. (2d) 195; Fischbach Brew. Co. v. St. Louis, 337 Mo. 1044, 87 S.W. (2d) 648; State ex rel. v. Jost, 265 Mo. 51, 175 S.W. 591; State ex rel. v. Nolte, Comptroller, 351 Mo. 271, 172 S.W. (2d) 854; State ex rel. Carpenter v. St. Louis, 2 S.W. (2d) 713. (4) Special execution was void for the reason that it not only misdescribed the judgment, but described a purported judgment that does not appear of record in any court, and for the reason that the judgment of record was barred by limitations when the execution was issued. Sligo Furnace Co. v. Hogue, 229 S.W. 190; Mallory v. Hartman, 86 Atl. 567; Mahan v. Tavern Rock, Inc., 327 Mo. 391, 37 S.W. (2d) 562; Benoist v. Rothschild, 145 Mo. 399, 46 S.W. 1081. (5) Kansas City tax deed based upon sale for delinquent city taxes for year 1933 is invalid as a muniment of title, but is good as a lien for the taxes represented thereby. State ex rel. v. Shain, 335 Mo. 474, 73 S.W. (2d) 391. (6) The trial court properly held that it had no jurisdiction to foreclose city general revenue tax liens set forth in its petition, or tax liens of county and state, set forth in answer and cross petition, for the reason that the city and county had adequate remedies under the charter of Kansas City, and statutes of Missouri, for the enforcement of such tax liens. Kansas City v. Field, 285 Mo. 253, 226 S.W. 27; Laws 1943, p. 1029, sec. S, p. 1034. (7) If appellant's sheriff's deed under the condemnation proceedings were valid, appellant's rights thereunder would have been subordinate to, and divested by, appellee's four tax deeds, since it is admitted that all of said tax deeds are based upon taxes levied and assessed upon the property in question, long after the date of the judgment confirming verdicts of the jury in the condemnation proceeding. Cullen v. Johnson, 325 Mo. 253, 29 S.W. (2d) 39; Broderick v. Tyer, 187 S.W. (2d) 476; State ex rel. Buder v. Hughes, 166 S.W. (2d) 516; Lucas v. Murphy, 348 Mo. 1078, 156 S.W. (2d) 686.

BRADLEY, C.

Action to determine title to the north 24.75 feet of lot 21, block 9, McGee's Addition, Kansas City. The trial court adjudged title in defendant Municipal Bond Corporation (hereinafter referred to as the bond corporation) subject to tax liens of plaintiff and the state and county; cancelled the deeds under which...