Missouri Real Estate & Loan Company v. Gibson

• Decision Date: 10 April 1920
• Citation: 220 S.W. 675,282 Mo. 75
• Parties: MISSOURI REAL ESTATE & LOAN COMPANY, Appellant, v. MARY J. GIBSON and BUCHANAN COUNTY
• Court: Missouri Supreme Court

220 S.W. 675

282 Mo. 75

MISSOURI REAL ESTATE & LOAN COMPANY, Appellant, v. MARY J. GIBSON and BUCHANAN COUNTY

Supreme Court of Missouri, First Division

April 10, 1920

Appeal from Buchanan Circuit Court. -- Hon. Charles H. Mayer, Judge.

Affirmed.

John E Dolman for appellant.

The holder of a deed of trust is an owner within the meaning of this statute, Sec. 8711, R. S. 1909. Morey Engineering Co. v. Ice Co., 242 Mo. 241, 259; Jaicks v Oppenheimer, 264 Mo. 693; Barnes Asphalt Co. v. Field 174 Mo.App. 11.

C. F. Strop and Graham & Silverman for respondent.

(1) While a proceeding to enforce the lien of a special tax bill is a proceeding in rem, yet there must be a proper party before the court in order to confer jurisdiction and a necessary party in the action is the owner of the fee. Sec. 8711, R. S. 1909; Perkinson v. Meredith, 158 Mo. 463; Heman v. McNamara, 77 Mo.App. 15; Paving Co. v. Field, 174 Mo.App. 14; Jaicks v. Sullivan, 128 Mo. 184; Gitchell v. Kreidler, 84 Mo. 47. (2) Under similar statute for the foreclosure of mortgage, owner of equity of redemption is necessary party to confer jurisdiction. Sec. 2828, R. S. 1909; McCauley v. Brady, 123 Mo.App. 564. (3) If Buchanan County is possessed of an interest in the property as contended by appellant then such interest is not subject to appellant's claim. Clinton ex rel. v. Henry Co., 115 Mo. 557. (4) Plaintiff's ignorance of the death of Mary J. Gibson is no excuse for failure to make the owner of the fee a party defendant. The law casts the burden on the contractor of ascertaining who is the legal owner of the property. While ordinarily the making of the record owner a party will satisfy this requirement, yet the exception to this rule is ownership by descent, and in such case the actual owners must be made parties defendant. Paving Co. v. Realty Co., 168 Mo.App. 481; Jaicks v. Sullivan, 128 Mo. 177.

RAGLAND, C. Brown and Small, CC., concur.

OPINION

RAGLAND, C. --

This is a suit to enforce the lien of special tax-bills issued by the City of St. Joseph for street improvements. The petition, naming Mary J. Gibson and Buchanan County as defendants, was filed January 31, 1916. Summons issued in due course to both, but was served on Buchanan County only. At the time the suit was instituted Mary J. Gibson was dead, and when this fact was discovered by plaintiff the lien of the special tax-bills had expired by limitation against all persons not then made parties to the suit. At the time of her death said Mary J. Gibson was the sole record owner of the property on which the tax-bills were a lien. At the date of the institution of the suit, Buchanan County was the owner and holder of certain notes that had been given by Mary J. Gibson in her lifetime and which were secured by a first mortgage or deed of trust on the lot on which it is sought to enforce the lien of the tax-bills; it had and has no other interest in the property.

Buchanan County made default. After hearing the evidence, the court held that plaintiff could not enforce the lien of its tax-bills against the lien of Buchanan County on the lot in question, for the reason that no person owning any interest in the fee therein was made a party to the suit. Judgment for defendant, and plaintiff appeals.

The City of St. Joseph is a city of the first class and the lien of its special tax-bills and the method of enforcing it are created and prescribed by Section 8711, Revised Statutes 1909. The provisions of this section, pertinent here, are as follows:

"Any of the owners of the land charged, or of any interest or estate therein, may be made defendants, but only the right, title, interest and estate of the parties made defendants in any suit shall be effected or bound thereby or by the proceedings therein. . . . Any such special judgment shall bind all the right, title, interest and estate in the land that defendants, and each of them, owned at the time the lien of the tax bill commenced, or acquired afterwards, and a sale on execution thereon shall vest all of such right, title, interest and estate in the purchaser, and discharge the lands from liens or incumbrances thereon; . . . In case the owner of any undivided interest or particular estate in any land charged be compelled by suit to pay, on account of any such tax bill, more than he ought equitably to pay, as between him and others interested in the property, such owner shall be subrogated to the lien of such tax bill, and may, by proper proceedings in any court of competent jurisdiction, enforce such lien, and have the equities between such owner so paying and such other owners or parties interested in the land adjusted, though such other owners or parties interested were not parties defendant to the original suit on the bill, and though such subsequent proceedings be commenced after the expiration of two years from the issue of the bill, or the party so paying shall be entitled to contribution or repayment from others, according to equity, without enforcing the lien."

Within the purview of the statute the suit to enforce the lien is in the nature of a proceeding in rem, but only "the right, title, interest and estate of the parties made defendants" are affected or bound by it. If no one having any "right, title, interest or estate" in the land charged with the lien is a party defendant, the court is wholly without jurisdiction of the subject-matter. [Allen v. McCabe, 93 Mo. 138, 144, 6 S.W. 62.] The special judgment and sale on execution thereof vests all the "right, title, interest and estate" in the purchaser "and discharges the lands from any liens or encumbrances thereon." The sole question for decision is, whether Buchanan County is the owner of such a "right, title, interest or estate" in the land covered by its deed of trust as would pass to and vest in a purchaser at a sale on execution under a special judgment enforcing the lien of the tax bills.

An important preliminary inquiry is, what interest or estate, if any, has a mortgagee in the mortgaged premises? The mortgage of the present day is the product of evolution, and the decisions of the courts respecting some of its characteristics are apparently more or less incongruous. For example, we hold that after condition broken the legal title to mortgaged land vests in the mortgagee and he can maintain...