Mullins v. Mt. St. Mary's Cemetery Ass'n

• Decision Date: 23 June 1914
• Docket Number: No. 18025.,18025.
• Citation: 168 S.W. 685,259 Mo. 142
• Parties: MULLINS v. MT. ST. MARY'S CEMETERY ASS'N et al.
• Court: Missouri Supreme Court

168 S.W. 685

259 Mo. 142

MULLINS v. MT. ST. MARY'S CEMETERY ASS'N et al.

No. 18025.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. APPEAL AND ERROR (§ 1097)—SUBSEQUENT APPEAL—LAW OF THE CASE.

The decision on a former appeal by the holder of special tax bills against a cemetery for sewer construction that the cemetery grounds were subject to sale for the payment of such bills is the law of the case on a subsequent appeal from a judgment for defendant in an action on the same tax bills.

2. MUNICIPAL CORPORATIONS (§ 485) — PUBLIC IMPROVEMENTS—ASSESSMENTS—LIABILITY OF ENTIRE CEMETERY TRACT OR OF SEPARATE LOTS.

A cemetery association owned a tract of about 35 acres, about two-thirds of which had been platted into lots and the plats filed in the office of the recorder of deeds, and had sold or conveyed many of the lots, by deeds containing the words "grant, bargain, and sell," to the grantee, his heirs and assigns, only as a place of burial, or by certificates entitling the purchaser to the exclusive use of the lot for burial purposes, subject to the rules and regulations of the association. Held, that it was legal and proper to issue special tax bills for sewer construction against the cemetery as one tract instead of against the separate lots; since assessments against the separate lots, rendering them subject to execution and secular uses, would destroy the entire tract for cemetery purposes.

3. MUNICIPAL CORPORATIONS (§ 562)—PUBLIC IMPROVEMENTS—ASSESSMENTS—FRAUD.

Fraud in laying out a sewer district is no defense to the collection of the special taxes for the construction of the sewer, unless such fraud is known to the contractor who does the work.

4. MUNICIPAL CORPORATIONS (§ 567) —SPECIAL ASSESSMENTS — ACTION TO COLLECT — PLEADING—FRAUD.

In an action to collect special tax bills for sewer construction, defendants' answer, not alleging that the holder had any knowledge of fraud in laying out the work, did not sufficiently raise the defense of fraud.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by W. C. Mullins against the Mt. St. Mary's Cemetery Association and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

See, also, 239 Mo. 681, 144 S. W. 109.

This is a suit on a special tax bill, in which judgment went for the defendant. The petition was filed July 24, 1907, and is in two counts based on special tax bills for the construction of sewers. The first count is on a bill for $17,598.28, dated October 12, 1904. It is payable in four annual installments, beginning May 31, 1905. It bears 7 per cent. interest, with the provision that, if there is default in the payment of any of the installments, the whole shall become due, and bear 10 per cent. from the date of the tax bill. The second count is on a bill for $1,531.71, dated September 1, 1905, bearing interest at 10 per cent. per annum. Both said bills are against the land included in Mt. St. Mary's Cemetery, in Kansas City, containing about 35 acres.

The answer admits that the defendant owned the land, and alleges that it holds the land as trustee for the improvement of Mt. St. Mary's Cemetery, of which said land is a part, and also for certain orphan asylums of Kansas City, except such portions or lots thereof as it has sold and conveyed for burial lots. It alleges that the land described is a public cemetery, 35 acres in area, not connected in any way with the sewer or sewers for the construction of which said tax bills are alleged to have been issued, and that in building said sewers there was no provision made by which drains on said land should be connected with said sewers, and that said cemetery lands derive no benefit whatever from said sewers, and that the tax bills equal or exceed the total value of the land; that for said reasons the ordinances authorizing the issuance of the tax bills in this suit are void, because they are fraudulent and oppressive; and that the enforcement of the tax bills in this suit would constitute a taking under the guise of taxation of the private property of the defendant for public use without any compensation, and is in violation, therefore, of sections 20, 21, and 30 of article 2 of the Constitution of the state, and also in violation of the fourteenth amendment to the Constitution of the United States. There is no allegation that the plaintiff knew of or was a party to such fraud.

It alleges that the cemetery grounds have been duly platted into lots, and the plats thereof filed in the office of the recorder of deeds of Jackson county, Mo.; that many of said lots have been sold and conveyed to persons who are now the beneficial owners, and that the act of the Kansas City board of public works in apportioning the special taxes for the construction of said sewer against the 35-acre cemetery tract as one lot was in violation of article 8, § 7, of the charter of Kansas City, Mo.

The reply was a general denial.

A jury was waived by the parties, and the trial was before the court. The plaintiff introduced the tax bills in evidence. The defendant introduced in evidence its charter and articles of association, dated December 24, 1898; also its by-laws, which included the following:

"8. The board of directors shall have power to make additional by-laws from time to time for the government of this association, which are not inconsistent with the Constitution or laws of the United States or of the state of Missouri. And it shall also have power to prescribe rules and regulations from time to time governing the use and maintenance of the cemetery grounds, which shall be binding on the association and on all lot holders in said cemetery.

"9. The board of directors shall have power to see to it that the cemetery grounds and all additions and extensions thereto shall remain in a proper state of ornament and repair, and may from time to time dispose of lots in said cemetery, which shall, however, be used for no other purpose.

"The surplus funds of this association shall from time to time be used and applied to the support and relief funds needed by local Catholic orphan asylums in Jackson county, Missouri, by and with the consent of the bishop of the Kansas City diocese.

"10. One-third of the receipts from the sale of lots shall be set aside as a maintenance fund, and the interest thereof devoted to the perpetual care of cemetery."

Said cemetery was originally laid out in 1877 by a corporation under the same name as that of the defendant and of which the defendant seems to be merely a continuation. Prior to such incorporation in 1898 the deeds made by the cemetery corporation to the lot holders contained the words "grant, bargain, and sell" in the granting clause, and also had the following clause:

"To have and to hold the same unto the said party of the second part, his heirs and assigns, only as a place of burial, subject, however, to the conditions, stipulations, and regulations hereto annexed and made part of this deed, and which are the conditions upon which this deed is made," followed by a clause of general warranty.

The annexed stipulations and...