Municipal Securities Co. v. Kansas City
| Decision Date | 05 March 1917 |
| Citation | 193 S.W. 880,195 Mo.App. 464 |
| Parties | MUNICIPAL SECURITIES COMPANY, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED.
Judgment affirmed.
John G Park and Ingraham D. Hook for appellant.
Clarence S. Palmer for respondent.
Plaintiff is the assignee of three special tax bills issued to one Walsh in payment for public work done by him under a contract with the defendant city. This action was brought for the aggregate amount of those bills and judgment for that amount was rendered for plaintiff in the trial court. The case was therefore appealed to this court, but on suggestion of one of the parties was transferred to the Supreme Court on the ground that a constitutional question had been brought into the case. That court concluded that such question was not necessarily involved and returned the case here.
The tax bills were dated and issued on the 25th of January, 1901, and delivered to Walsh the next day and he immediately thereafter sold and assigned them to plaintiff. They were a lien on the lands therein described. They are transcribed on the public record and the world had notice of them and the lien they impose.
After they were issued and delivered the defendant city, by ordinance, established a public park which embraced within its limits the lands on which the bills were liens, which lands, with other tracts, were, in due course, condemned by defendant. Two of the tracts were owned by one Potter and the other by one Baker, and their aggregate value, as assessed in condemnation, was $ 15,232. There were incumbrances on portions of the property made up of a trust deed and other liens, and the city held back from these owners an amount sufficient to meet the aggregate of these sums, viz, $ 7500, and paid the remainder to Potter and Baker respectively; such remainder being more than the amount of the tax bills.
Afterwards on the 13th of July, 1903, the defendant city filed a bill of interpleader making parties thereto, the owners of the land, the trustees in the deeds of trust and other lienors and parties in interest, except this plaintiff and Walsh, its assignor, although by way of abstracts that had been made, it knew of plaintiff's lien, besides having the general notice through operation of law, as has been already stated. The bill asked that the parties be required to interplead for the money due them according as the interest of each might be ascertained to be. Without going into unnecessary detail concerning the interpleader, it will suffice to say that the interests of various parties were ascertained and the money ordered paid to them out of the fund deposited with the court by the defendant city as has been stated.
After these payments had been made, this plaintiff having just learned of the interpleader, filed an intervening petition in that action, setting up its claim under four tax bills on other lands for small amounts aggregating less than one hundred dollars. Upon this circumstance, a claim of estoppel against plaintiff is urged by the defendant. But passing that for the present, the net result was that the park condemnation money for the land upon which plaintiff's tax bills now in suit were liens was all paid out to other parties than plaintiff, and the lands became a part of, and absorbed in, the city's park.
On this state of facts the question is, has the defendant city become liable to plaintiff for the amount of the tax bills? In our opinion no valid reason can be given why a liability does not exist. Three prominent facts stand out in the record. One that plaintiff had the lien; and, second, that defendant, appropriated the property on which the lien existed; and third, that defendant paid out condemnation money to the owners, whose condemned lands it knew were subject to the lien of plaintiff's tax bills, without ever having given plaintiff any notice of its proceedings and of which plaintiff had no knowledge until about six months after the money had been paid. It can be stated in another way: It has been decided that if there is a lien for a tax bill against the real estate in a city which realty has been converted into a fund the lien will attach to the money. [Ross v. Gates, 183 Mo. 338, 347; Buchanan v. Kansas City, 208 Mo. 674, 681; Ross v. Gates, 117 Mo.App. 237, 93 S.W. 856.]
So when the city laid hold of that money and without right--without authority from the lienor--and with notice of his lien, paid it out to the owner of the realty, it converted the money and is liable to the lienor in damages measured by the loss of the money which should have been applied in discharge of the lien.
That one with an interest in land cannot have it taken from him by a condemnation proceeding without being made a party thereto is a fundamental proposition of law which finds apt illustration in Holmes v. Kansas City, 209 Mo. 513, 528, 108 S.W. 9. But getting closer to this controversy on its facts, we have State v. Railroad, 75 Neb. 4, where the defendant railroad condemned a right of way over land subject to a lien for State taxes of which the road had record notice. The State was not made a party by the road when it instituted its proceedings or afterwards. The third syllabus of the case reads as follows:
"If a railway company on condemnation proceedings for its right of way and depot grounds...
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