Robinson v. Levy

Decision Date09 March 1909
Citation217 Mo. 498,117 S.W. 577
PartiesROBINSON v. LEVY.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by R. B. Robinson against Max Levy. From a judgment for defendant, plaintiff appeals. Affirmed.

This appeal, on the part of the plaintiff, is from a judgment of the circuit court of Jackson county, Mo., at Kansas City, in favor of the defendant. This proceeding is predicated upon the provisions of section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), by which it is sought to have the court ascertain and determine the title, estate, and interest of plaintiff and defendants herein, respectively, in and to the following real estate: The east forty (40) feet of a tract of land, bounded as follows, to wit: On the north and west, by Westport avenue; on the south, by the south line of section 19, in township 49, range 33; on the east, by lot one (1) of Jones and Fisher's addition to the city of Westport, now being a part of Kansas City.

The answer interposed by the defendant to the petition was, first, a general denial of each and every allegation in said petition contained, except the allegation that defendant claims some title, estate, or interest in the real estate described in the petition. The defendant, further answering, specifically denies that plaintiff has any right, title, or interest in said land, or is in the possession of the same. Then follows in said answer the allegation that the defendant is, and for a long time past has been, the owner in fee of the real estate in controversy, and that he is now in possession of the same.

This cause was submitted to the court upon an agreed statement of facts. We do not deem it necessary to reproduce this statement, with all the details of the agreed statement of facts as disclosed by the record. A brief reference to the facts as applicable to this controversy will be sufficient to enable us to determine the legal propositions disclosed by the record.

It appears from the agreed statement of facts that in 1893 one Augustus Smith was the undisputed owner of and in possession of the land in question, and that in September, 1893, a suit was filed against said Augustus Smith to enforce against the land a lien for certain special tax bills issued by the city of Westport to pay the cost of paving Main street, upon which street the land in question abutted.

As the sufficiency of the petition in that case is challenged, it is well to reproduce it. It was as follows:

"Plaintiff, for cause of action, states: The city of Westport is a municipal corporation organized and existing under and by virtue of the laws of the state of Missouri, and is a city of the fourth class; that heretofore, and prior to the 17th day of June, 1891, the said city of Westport, for the purposes of improving Main street from South Main street to the southern city limits by paving the same in said city, by ordinance No. 143, entitled, `An ordinance to pave Main street from South Main street to the western limits of the city of Westport,' which ordinance was approved on the 17th day of June, 1891, and in pursuance to such ordinance, such improvement was made and said street was paved, and, when the work was completed, the cost thereof was apportioned among the several lots and parcels of land to be charged therewith, and each lot and parcel of property was charged with its proper share of such costs, according to the frontage of the property, and there was charged against the following described lot or parcel of land in the city of Westport, county of Jackson, state of Missouri, to wit: The east forty (40) feet of a tract of land bounded as follows: On the north and west by Westport avenue; on the south by the south line of section nineteen (19), township forty-nine (49), range thirty-three (33) west; on the east by lot one (1), Jones & Fisher's addition, in the city of Westport—the sum of fifty-one and 32/100 ($51.32) dollars, its proper share of such costs. That the said city of Westport, for the purpose of paying for such improvements, caused its certain tax bill to be issued against the above-described property for the said sum of fifty-one and 32/100 ($51.32) dollars, which bill was issued on the 6th day of May, 1892, which bill bears interest at the rate of ten per cent. per annum after thirty days from the date of issuance, and, if not paid in six months from date of issue, it shall bear interest at the rate of fifteen per cent. per annum until paid, a copy of which bill is hereto attached, and made a part of this petition. That this plaintiff, S. Howard McCutcheon, is the owner of such tax bill, and that the same, nor any part thereof, has been paid. That the above defendants have, or claim to have, some interest in the above-described property, and that there is due plaintiff from defendants the sum of fifty-one and 32/100 dollars, and interest thereon at the rate of ten per cent. per annum for the first six months from thirty (30) days after date of issuance as above stated, and fifteen per cent. per annum since such time for the improvements above set out. Wherefore, plaintiff asks judgment for the sum of fifty-one and 32/100 dollars, and interest thereon at ten per cent. per annum for six months from May 6, 1892, and at fifteen per cent. per annum since such time, and the costs herein expended, and that the same be declared a special lien upon the above-described property, to wit: The east forty (40) feet of a tract of land bounded as follows: On north and west by Westport avenue; on the south by south line of section nineteen (19), township forty-nine (49), range thirty-three (33) west; east by lot one (1), Jones & Fisher's addition, in the city of Westport.

"Plaintiff, for a second and additional cause of action, states that the city of Westport is a municipal corporation, organized and existing under and by virtue of the laws of the state of Missouri, and is a city of...

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    ...in other actions. 3 Cooley on Taxation (4 Ed.), sec. 1408, p. 2788; Allen v. McCabe, 93 Mo. 138, 143, 6 S.W. 62, 63; Robinson v. Levy, 217 Mo. 498, 515, 117 S.W. 577, 582. It is true that many of our tax statutes in the past have allowed the landowners to controvert a tax deed on such groun......
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