Platt v. The Parker-Washington Company
| Decision Date | 19 February 1912 |
| Citation | 144 S.W. 143,161 Mo.App. 663 |
| Parties | M. R. PLATT, Jr., Respondent, v. THE PARKER-WASHINGTON COMPANY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
Ball & Ryland for appellant.
(1) The cause of action, if any, for the cancellation of defendant's taxbill can not be stated for the first time in a so-called reply. Where as here the nature of defendant's claim is not alleged in the petition to be "unknown" to plaintiff but is distinctly stated without intimation even that it is invalid. Rhodes v Land & Lumber Co., 105 Mo.App. 279; Gage v Cantwell, 191 Mo. 698. (2) It is not alleged in petition or reply, or proven, that any rebate or contract therefor enhanced to any extent the contract price, or that but for such arrangement the work could have been let cheaper. This being so there is no injury. Allen v. Labsap, 188 Mo. 692; Jaicks v. Merrill, 201 Mo. 91; Gist v. Rackliff, 123 S.W. 921. (3) There is no equity in the petition or the reply. Plaintiff does not offer to do equity, but seeks in a court of conscience to obtain the improvement for nothing. He does not ask to be treated as he claims other property owners were treated but asks that by reason of the rebate alleged to have been given to other people of something like twenty-five per cent he may have his entire assessment cancelled and be held entitled to pay nothing for the improvement. (4) The petition to the council to order the paving of the street is outside of the charter law, was not requisite at all to the action of the city authorities, and with or without such petition the regularity of the proceedings and the letting of the contract was valid. The precedent action of the contractor in soliciting the property owners to sign the petition for the improvement did not affect in any way the validity of the city's proceedings. (5) At the very utmost in equity all that the plaintiff could be accorded would be equal treatment with those to whom concessions were given. To permit him to cry fraud in respect to those concessions and allow him thereby to secure the improvement for nothing would be to allow him to perpetrate a much greater fraud than the one he denounces. "He who seeks equity must do equity."
Clyde Taylor for respondent.
(1) This action is properly brought and the relief was properly granted under Sec. 650, R. S. 1899. A petition in the words of the statute is good pleading and is sufficient. Huff v. Land Company, 157 Mo. 65. (2) It is submitted that the case at bar presents an appropriate situation for the employment of the beneficial provisions of section 650. Plaintiff alleged he owned the title; defendant claimed an interest. The charter of Kansas City made the taxbill a lien upon the property. Eyssell v. St. Louis, 168 Mo. 607; Mann v. Doer, 222 Mo. 12. (3) Plaintiff's reply was responsive to the new matter in the answer, and testimony was properly admitted under the issues made thereby. (4) The whole proceeding was void by reason of the fact that the defendant entered into the secret side agreements with certain favored property owners to the effect that such owners should receive rebates or reductions upon their taxbills when issued, and no valid tax bill can be supported thereby. The proposition that the secret side agreements rendered the whole proceeding void, is not a new question in this state. It has been decided here and elsewhere. Childers v. Holmes, 95 Mo.App. 154; Rider v. Parker-Washington Company, 128 Southwestern 226; Kurtz v. Knapp, 127 Mo.App. 608; Brady v. Bartlett, 56 Cal. 350; McGuire v. Smock, 42 Ind. 1; Field v. Paving Co., 117 F. 925; Elliott on Roads and Streets (2 Ed.), sec. 587. (5) There is no element of estoppel in the case. The vice complained of exceeds that of a mere irregularity. It is one which nullifies the ordinance, the contract and the assessment. Verdin v. St. Louis, 131 Mo. 26; Keane v. Klausman, 21 Mo.App. 485; McCormack v. Moore, 134 Mo.App. 669; Cox v. Mignery & Co., 126 Mo.App. 669.
This suit was instituted in the circuit court of Jackson county, January 18, 1907, to clear the title of plaintiff to certain land owned by him in Kansas City from the lien of a special taxbill issued to defendant The Parker-Washington Company on account of an improvement of the street in front of the land made by said company under contract with the city. Plaintiff contends the taxbill is invalid because of secret rebates given by the company to other property owners, but instead of bringing a suit in equity to cancel the taxbill plaintiff in his petition founded his cause of action on section 650, Rev. Stat. 1899, and alleged only such facts and asked only such relief as that statute makes essential to the statement of a good cause of action to quiet the title to real property. On the theory that the Parker-Washington Company possibly had sold and assigned the taxbill the petition was filed against that company and other defendants unknown to plaintiff, but since the company admits it is the owner of the taxbill we shall speak of it hereafter as the defendant. The petition alleged that plaintiff was the owner in fee of the land in question and in possession thereof and that the defendant is "claiming some title, estate and interest in and to said real property adverse to the title, estate and interest of plaintiff therein."
The petition then proceeds to state in substance that the adverse claim consists of the alleged lien of a special taxbill of $ 618.13, issued by Kansas City for the paving of Twenty-first street from Tracy avenue to Charlotte street, "a more complete description of which said taxbill plaintiff cannot give for the reason that the same has never been in his possession, and neither it nor a copy thereof has ever been accessible to plaintiff; that the interest of such persons so unknown to plaintiff as aforesaid in the subject-matter of this petition so far as plaintiff's knowledge extends, consists in having such taxbill declared a lawful lien upon the land above described to secure the payment of the amount of said taxbill and interest thereon." The prayer of the petition is that the court "try, ascertain and determine the title, estate and interest of the plaintiff and the defendants and each of them respectively in and to said real property, and by its judgment and decree define whatever interest the several parties, plaintiff and defendants, herein, may have in and to said real estate."
Defendant in its answer admits that it is asserting a lien against the property, alleges that the taxbill is due and unpaid and prays for the foreclosure of the lien. The reply is as follows: "Plaintiff for reply to the answer of The Parker-Washington Company to the first amended petition says that the taxbill referred to in said answer is and at all times has been void and of no effect for the reason that the said defendant, The Parker-Washington Company, prior to the issuance of said taxbill and the passage of the ordinance under which the same was issued...
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