Stifel v. Brown

• Citation: 24 Mo.App. 102
• Parties: PHILIP F. STIFEL, Respondent, v. REBECCA W. BROWN ET AL., Appellants.
• Decision Date: 04 January 1887
• Court: Court of Appeal of Missouri (US)

24 Mo.App. 102

PHILIP F. STIFEL, Respondent,

v.REBECCA W. BROWN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

WILLI BROWN, for the appellants: There is no privity of contract between the parties, and the lien does not arise from any equities between the parties, and is not enforceable in equity. Prendegast v. Richards, 2 Mo. App. 193. A special tax bill has no validity or existence, save as a lien on the land charged by it. Seibert v. Copp, 52 Mo. 182; Anderson v. Holland, 40 Mo. 600.

GEORGE A. CASTLEMAN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action upon a special tax bill for the cost of reconstructing with granite pavement a portion of Plum street in the city of St. Louis. The ordinance (No. 12,426) which authorized the work was passed March 27, 1883. The contract under which the work was let was executed April 17, 1884. The special tax bill, which was issued to the contractor and which is the foundation of this action, is dated September 17, 1884. The lot of ground against which the tax bill is issued is described therein as “lot number twelve, in city block number one, said ground having an aggregate front of twenty-two and five-tenths feet, by a width of ninety-nine and twenty-nine one-hundredths feet, bounded north by Climer, east by Commercial street, south by Plum street, and west by First street.” It is thus seen that the improvement for which this special assessment is made against the lot, extends along the flank of the lot throughout its entire length, and that, in respect of this improvement, regarding the lot as fronting upon it, the lot had a depth of twenty-two and five-tenths feet only. The manner in which this assessment was required to be made was prescribed by the fourth and fifth sections of the ordinance, in the following language:

“Section 4. The cost of the foregoing work, and all proper connections and intersections required, shall be charged as a lien upon the adjoining property fronting or bordering upon the improvement herein provided for, and shall be paid by the owners thereof, except as hereinafter provided. When said work is completed the president of the board of public improvements shall compute the cost thereof and levy and assess the same as a special tax against each lot of ground chargeable therewith, in the names of the owners thereof respectively, in the proportion that the linear feet of each lot fronting or bordering on said improvement bears to the total number of linear feet of all the property chargeable with the special tax aforesaid, and shall make out and certify to the comptroller, on behalf of the contractor, bills of such cost and assessment accordingly, as required by law.

Section 5. Whereas, the estimated cost of the foregoing work and all proper connections and intersections, required as provided for by this ordinance to be assessed against some of the lots fronting or bordering on the aforesaid improvements, amounts to more than twenty-five per centum of the assessed value of said lots, therefore, the amount in excess of twenty-five per centum shall be paid by the city of St. Louis; and the sum of five hundred and thirty-eight dollars is hereby appropriated on account thereof, payable out of the fund set apart for street reconstruction.”

The president of the board of public improvements complied with the above requirements of the ordinance in making this assessment. The tax bill shows on its face that the total cost of the work was first ascertained, and then the rate per front foot of the frontage taxed, making the total tax against this frontage, $733.93; that the assessed value of the property was one thousand six hundred and ninety dollars, one-fourth of which would be $422.50; and that this sum, $422.50, was the amount assessed against the property in question, the excess, $311.43, remaining to be paid by the city. It thus appears that the assessment was made in substantial conformity with the ordinance. It is consequently a good assessment, unless the ordinance itself is invalid, or, unless the right to make the assessment has been defeated by the act of the original owner of the lot, Mrs. Brown, questions which will be hereafter considered.

I. On the twelfth day of April, 1884, which, it will be perceived, was before the contract under which the work was done was entered into, but after the ordinance authorizing it was passed, the defendant, Rebecca W. Brown, conveyed to her mother, Mrs. Willi, a small portion of the lot in controversy, three feet in width, extending from one end of the lot to the other, on the south side of it along its entire margin, on Plum street. On the fifteenth of March, 1885, Mrs. Willi conveyed this strip of land by warranty deed to Joseph T. Donovan. The consideration paid by Mrs. Willi, and also by Donovan, was two hundred and ten dollars, which was seventy dollars per front foot, a sum less than the assessed value of the property, and considerably less than its market value. The parties to this conveyance and Mr. Willi Brown, son of Rebecca W. Brown, under whose advice it was made, all testified that it was an out and out sale. Mr. Donovan paid the money for it, and swears that he bought it because he thought it was a good investment. It appears that since the sale Mr. Donovan's proportion of the rent collected from the tenant of what was previously the whole lot has been collected by Mr. Willi Brown and regularly paid over to him. But Mrs. Brown's avowed object of the conveyance was to defeat the collection of this assessment in part. The first deed was made to the mother of Mrs. Brown, without any previous bargain or consultation between her and Mrs. Brown; the grantee to whom the deed was made by Mrs....