Osage Land Co. v. Kansas City, 39235.

Decision Date02 April 1945
Docket NumberNo. 39235.,39235.
PartiesOSAGE LAND COMPANY, a Corporation, Appellant, v. KANSAS CITY, MISSOURI, a Municipal Corporation.
CourtMissouri Supreme Court
187 S.W.2d 193
OSAGE LAND COMPANY, a Corporation, Appellant,
v.
KANSAS CITY, MISSOURI, a Municipal Corporation.
No. 39235.
Supreme Court of Missouri.
Division One, April 2, 1945.
Rehearing Denied, May 1, 1945.

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

W.H.H. Piatt for appellant.

(1) Appellant was on October 3, 1932, equitably entitled to its award of $21,700 with interest from the date respondent's proceedings impounded the dominion, use, control, right to lease, mortgage, sell and enjoy its property. 1 Bouvier Law Dict., pp. 680 et seq. Ed. 1897; Sec. 4, Art. II, Mo. Const.; Sec. 3228, R.S. 1939; Webster v. Kansas City So. Ry., 116 Mo. 114; Martin v. St. Louis, 139 Mo. 246; Plum v. Kansas City, 101 Mo. 525; St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 S.W. (2d) 1180. (2) Private property shall not be taken for public use without just compensation first paid therefor 5th Amendment Const. U.S.; Secs. 4 and 21, Art. II, Mo. Const.; Kansas City v. Ward, 134 Mo. 172; Jasper Land & Imp. Co. v. Kansas City, 293 Mo. 674, 239 S.W. 864; Newby v. Platte County, 25 Mo. 258. (3) The condemnation receipt does not acquit and satisfy the award and interest. (a) It neither includes nor waives interest. (b) 16 Park Fund Certificates — (Sec. 21, Art. II, Mo. Const. orders and compels just compensation, including damage), is and was not payment for $16,000 of the award and interest. Sec. 10, Art. I, U.S. Const.; Secs. 186-187, Art. VI, K.C. Charter; Sec. 3228, R.S. 1939, commanding interest from date of sequestration. (c) The condemnation receipt was obtained by misrepresentation, discrimination and concealment of material facts, was altered by interpolation and duress after it was gotten by respondent and is a fraud in law and fact upon appellant. (d) Respondent by the unauthorized representation of its City Counselor and City Manager cannot bind appellant unless it is also thereby bound. (4) Interest is allowable on an award and must be paid as a part thereof. Secs. 10-21, Art. II, Mo. Const.; Fifth Amendment, U.S. Const.; Sec. 3228, R.S. 1939; Plum v. Kansas City, 101 Mo. 525; St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 S.W. (2d) 1180; Webster v. Railroad Co., 116 Mo. 114; Martin v. St. Louis, 139 Mo. 246; Brunn v. Kansas City, 216 Mo. 108. (5) Until payment of just compensation in lawful money with interest, right and title remains in appellant. Fifth Amendment, U.S. Constitution; Sec. 21, Art. II, Mo. Constitution; Walther v. Warner, 25 Mo. 277; St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 S.W. (2d) 1180; Kansas City v. Ward, 134 Mo. l.c. 183; Sec. 169, Art. VI, K.C. Charter. (6) Respondent is not empowered to pay in conditional, nonguaranteed payment Park Fund Certificates awards of just compensation for private property taken for public use. Sec. 3349, R.S. 1939; Sec. 2962, R.S. 1929; 10 (1) Art. I, U.S. Constitution; Secs. 186-187, Art. VI, K.C. Charter; Walther v. Warner, 25 Mo. 277. (7) The ten-year statute of limitations, Secs. 1013-1014, or others, do not bar payment after ten years of awards of just compensation for private property taken for public use. Fifth Amendment, U.S. Constitution; Secs. 4, 21, Art. II, Mo. Constitution. (8) The secret payment of the money, $59,821.03, received from the benefit district by respondent October, 1931, to selected tract owners of their awards in full, unprorated, unknown, unconsented and unagreed to by appellant, enfeoffed respondent and disseized appellant. (9) The respondent's payment to selected tract owners their awards in full without the knowledge, consent and agreement of appellant was illegal, inequitable and immoral. (10) The benefit assessments to pay the just compensation awards drew interest at 6% from June 29, 1931, undefaulted, and 8% defaulted until paid, and likewise did the awards. Sec. 3228, R.S. 1939. (11) The repudiation by respondent of the provisions and intendments of Ordinance 1090, the decree of confirmation, and the promises and representations of its charter officers and agents violates the constitutional guarantees to appellant, is inequitable and unjust, and evokes the corrective power of equity to effect justice. (12) The value of the 16 certificates, October 3, 1931, is the compound interest at 6% yielded in 11 years, divided by the compound interest on $1.00 for that period, to-wit: $2,501.60 divided by 898 equals $2,785.07, instead of the $16,000 as represented on the receipt at $174,065 per certificate instead of $1000 per certificate. (13) Appellant's award of $21,700 slightly exceeded 10% of the entire award of $213,009, and it had the indefeasible right to 10% of the $59,821 collected and paid by respondent October, 1931, to preferred tract owners, to-wit: $5,921, and which was unlawfully then and there converted by respondent. (14) The amount with compound interest at 6% for 11 years on 10% of $59,821 is $11,354.02, and at 8% is $12,944.07, and equity can and ought to assess this interest against respondent on its conversion of appellant's 10% interest in the benefits collected and paid October, 1931, to its preferred tract holders. (15) Until and unless appellant is paid its award in full in lawful money, with all interest duly accrued thereon, or be provided enforceable, adequate, solvent, collectable collateral security therefor, it is not divested of its equitable right and title to a vendor's lien. (16) The neglect and failure of respondent to issue executions for the unpaid assessments and interest per the charter's requirements entitles appellant to judgment herein. (17) The alert issued by respondent June 28, 1943, "for the immediate preservation of the public peace, property, health, safety and morals" by the appropriation of $48,487.22 to pay delinquent assessments of less than $25, was four months after the institution of this action.

William E. Kemp, City Counselor, and Benj. M. Powers, Assistant City Counselor, for respondent.

The judgment for plaintiff's award was paid and satisfied. Jasper Land & Imp. Co. v. Kansas City, 293 Mo. 674, 239 S.W. 864; Hickox v. McKinley, 236 S.W. 1068; Weston v. Clark, 37 Mo. 568; McCormick v. O'Banion, 153 S.W. 267; Vance v. McHugh, 187 Mo. App. 708; 48 C.J. 608, sec. 39; 40 Am. Jur. 739, secs. 40, 52; Halstead v. Parker, 238 S.W. 287; Reinecke v. Pelham, 199 So. 521; First Natl. Bank of Jackson v. Reynolds, 143 S.W. (2d) 721; Krauss v. West, 123 S.W. (2d) 946; Saline County v. Thorp, 88 S.W. (2d) 183; West Virginia Coal Co. v. St. Louis, 25 S.W. (2d) 466, 324 Mo. 968; Mullins v. Kansas City, 208 Mo. 444, 188 S.W. 193; State ex rel. Natl. Bank of Tacoma v. Tacoma, 97 Wash. 190, 166 Pac. 66; Charter of Kansas City, Secs. 182, 187. (2) The appellant was not entitled to interest upon its condemnation award. In re Proceedings to Open and Widen Oak Street, 308 Mo. 494, 273 S.W. 105, 271 U.S. 691; Plum v. City of Kansas, 101 Mo. 525; Brunn & Donnell v. Kansas City, 216 Mo. 108, 115 S.W. 446; Kansas City v. Boruff, 295 Mo. 28, 243 S.W. 167; Meriweather v. Kansas City, 305 Mo. 577, 259 S.W. 89; Jasper Land & Imp. Co. v. Kansas City, 293 Mo. 674, 239 S.W. 864; United States v. North Carolina, 136 U.S. 211; Leviticus 25: 36; Psalms 15: 5; 33 C.J., pp. 180, 183; McManus v. Burrows, 217 S.W. 512, 231 S.W. 129; Webster v. Kansas City So. Ry., 116 Mo. 114; Martin v. St. Louis, 139 Mo. 246; St. Louis v. Center Comm. Co., 124 S.W. (2d) 1180; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 969; State ex rel. Tuller v. Seehorn, 246 Mo. 568, 151 S.W. 724; Kansas City v. St. Louis & Kansas City Land Co., 260 Mo. 395, 169 S.W. 62, 241 U.S. 419; Charter of Kansas City, Secs. 156, 169; Charter of Kansas City, 1908, Art. VI, Sec. 10. (3) Appellant's cause of action was barred by the ten-year statutes of limitation. R.S. 1939, secs. 1002, 1038; Duncan v. Mo. Pac. Ry. Co., 22 Mo. App. 614; Eyssell v. St. Louis, 168 Mo. 607. (4) The several awards in the condemnation case were entirely separate judgments and payment upon one award would not toll the statute as to others. City of Kansas v. Hill, 80 Mo. 523; St. Louis v. Lanigan, 97 Mo. 175; Kansas City v. Smart, 128 Mo. 272; Neenan v. St. Joseph, 126 Mo. 89; Kansas City v. Block, 175 Mo. 433, 74 S.W. 993. (5) Distribution payments made on Park Fund Certificates. Series A-27, were not payments upon the judgment. Sparks v. Jasper County, 213 Mo. 218, 112 S.W. 265; Charter of Kansas City, Sec. 182; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 969; State ex rel. Tuller v. Seehorn, 246 Mo. 568, 151 S.W. 724; Kansas City v. St. L. & K.C. Land Co., 260 Mo. 395, 169 S.W. 62; Sugent v. Arnold's Estate, 340 Mo. 603; Bridges v. Stephens, 132 Mo. 524; Brannen v. Klaber, 330 Mo. 306, 49 S.W. (2d) 169. (6) Appellant was not prejudiced by the payment of awards in cash to the amount of $59,821.03. Charter of Kansas City, Sec. 168; State ex rel. Tuller v. Seehorn, 246 Mo. 568, 151 S.W. 724. (7) Respondent Kansas City did its full duty respecting park fund certificates. Southworth Co. v. Lamb, 82 Mo. 242; Sumner v. Rogers, 90 Mo. 324; Peycke Bros. Comm. Co. v. Davis, 257 S.W. 824; Koch v. State Highway Comm., 47 S.W. (2d) 138; Kansas City v. Baird, 98 Mo. 215; Kansas City v. Smart, 128 Mo. 272; Charter of Kansas City, Secs. 160, 173, 174, 182; Kansas City v. Field, 270 Mo. 500; Kansas City v. Field, 285 Mo. 253, 226 S.W. 27; Laws 1919, p. 221; Kansas City v. Ward, 134 Mo. 172, 35 S.W. 600.

DALTON, C.


Action in equity by the condemnee in a condemnation proceeding to have the judgment, which determined the amount of compensation due plaintiff as such condemnee, declared a lien upon the land condemned, and for other relief. The trial court found that the judgment had been "fully paid and satisfied" and that plaintiff was "not entitled to assert any lien with respect to said land or any lien with respect to said judgment." Plaintiff has appealed.

Ordinance No. 1090 of Kansas City, under which the condemnation proceeding was instituted...

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