State ex rel. Granite Bituminous Paving Co. v. Reynolds , 278 Mo. 560 ( 1919 )

"WILLIAMS, J.

Relator, by this, an original proceeding in certiorari, seeks to quash, on the ground that it conflicts with controlling previous decisions of this court, an opinion of the St. Louis Court of Appeals in the case of Granite Bituminous Paving’ Company, Respondent, v. Parkview Realty & Improvement Company et al., Appellants. The opinion of the St. Louis Court of Appeals is published in 199 Mo. App. 226.

The facts, stated in the opinion of the Court of Appeals, which are necessary to an understanding of the issue presently presented, may be summarized as follows:

On July 1, 1905, a special tax bill for street improvement work was duly issued by the City of St. Louis 'to the Granite Bituminous Paving Company (the contractor who performed the street improvement work). The tax bill was issued against a certain lot of ground in Block No. 3878 of said city, which lot had a frontage of 405.17 feet on Union Boulevard in said city.

At the time the work was performed and the tax bills therefor were issued said lot was owned by the Parkview Realty & Improvement Company, subject to two deeds of trust dated July 1, 1902, and August 1, 1902, respectively. Said deeds of trust were executed to secure the payment of certain bonds.

- Within two years from the maturity of said tax bill the Paving Company instituted suit to enforce its lien against said lot. In that suit the Parkview Realty & Improvement Company, and each of the trustees in the two deeds of trust above mentioned, were made parties defendant, but the beneficiaries under said deeds of trust were not made parties.

While said suit was pending, but after more than two years had elapsed since the date of the maturity of said tax bill, the above mentioned lot was sold under the two deeds of trust and the Nina Realty Company became the purchaser thereof. Thereafter by amended petition the Nina Realty Company was made defendant.

The case proceeded to trial and the circuit court entered judgment in favor of the Paving Company establishing and enforcing the lien of the tax .bill against the interest of both the Parkview Realty & Improvement Company (the owner named in the tax bill) and the Nina Realty Company (the purchaser at the mortgage sale).

The Nina Realty Company thereupon took an appeal • to the St. Louis Court of Appeals, which court, by a decision (now attacked for conflict), reversed the judgment of the circuit court.

The Court of Appeals in effect held that the beneficiaries in tlie two deeds of trust were “owners” within the meaning of the St. Louis Charter, and were necessary parties defendant to the suit which sought to enforce the lien of a special tax bill against their interest in said lot, and since said beneficiaries were not made defendants within two years from the maturity of said tax hill neither their interest nor that of their successor, .the Nina Realty Company, was chargeable with the lien. The opinion reads in part as follows:

“Obviously, error lies in this judgment, for it involves and affirms the idea that one’s rights may be concluded as though a valid claim existed against him or his property without having his day in court until long after such claim had become extinguished of its own force. By Section 25, Article VI, of the Charter, it is provided the tax bill shall become a lien upon the property charged therein and may be collected of the owner of the land and in the name of and by the contractor, as any other claim, in any court of competent jurisdiction. • Prom this, it appears that the lien is to be enforced against the land in the name of the owner thereof and, by subsequent provision of the same section, the lien of the tax bill, it is declard, ‘shall be destroyed and of no effect against the land charged therewith,’ unless proceedings shall have been commenced to colled the same within two years from the maturity of the bill and still be pending. Therefore, the proceedings must be commenced on the tax bill and against the owner of the land within such two-year period in order to preserve and establish the lien, or otherwise it is destroyed and extinguished perforce the very words that gave it life. The authorities are abundant and of one accord to the effect that the suit must be instituted against the owner within the two-year period prescribed, as will appear by reference to the following cases. . . . Considering the thought reflected throughout all of these authorities, it is obvious that the beneficiary in the deed of trust or mortgage is required to be made a party to the suit, for the reason that he is an owner, within the sense of that term as employed in the charter provision and as employed in the statute with respect to general taxes levied in behalf of the State. Some of the cases put the rule expressly on the ground that the beneficiary is an owner. [See Stafford v. Fizer, 82 Mo. 393; Gritchell v. Kreidler, 84 Mo. 472.]' Furthermore, the Supreme Court, in the recent case of Morey Engineering Co. v. St. Louis Artificial Ice Co., 242 Mo. 241, 146 S. W. 1142, in construing the St. Louis Charter, declared the beneficiary in the deed of trust an owner within the sense of that term, to the end of raising the lien of the tax bill from the position of the junior, where it otherwise lay, to that of senior lien over a mortgage prior*thereto in point of time. To the end of evincing that the charter contemplated the lien of the tax bill should prevail over the rights of a prior mortgage, the Supreme Court quoted from Section 25 of the charter as follows: ‘Said tax bills shall be and become a lien upon the property charged therewith, and may be collected of the owner of the land and in the name of and by the contractor as any other claim in any court of competent jurisdiction.’■ Touching the words thus quoted, the court .says: ‘Construed in the light of the case last cited, this means .that the tax is a lien upon the property, to be enforced by a proceeding in rem against the property. And, as ruled above, the word “owner” includes incumbrancers.’ If, then, the beneficiary in the deed of trust is to be regarded as an owner of the property for the purpose of postponing the lien of his prior mortgage to the lien of the subsequent tax bill, it would seem that he should be regarded as an owner in whose favor the requirement to institute suit within the two-year period, in order to preserve the lien, obtains. . . . From the views expressed above it follows that the interest of the cestuis que trustent, who were never made parties, remained unaffected by the proceeding herein. That interest has now passed to the Nina Realty Company, which corporation has acquired the fee simple title to' the land through the foreclosure of the deed of trust. That defendant was not made a party to the suit until more than two years after the maturity of the tax bill, and hence the land in its hands is not chargeable with the lien thereof”’

Much of the opinion is given over to a discussion of the difference between a lien for general taxes and a special tax lien, and the similarity of a mechanic’s lien to* that -of a special tax lien, and from that discussion the court draws the conclusion that the rule making mortgagees unnecessary parties in a suit to foreclose a lien for state taxes-is not applicable in a suit to foreclose a special tax lien, but that the rule making mortgagees necessary parties in establishing and foreclosing a mechanic’s lien is applicable in a suit of this kind.

Relator contends that the opinion of the Court of Appeals conflicts with the following controlling opinions of this court, to-wit: Paxton v. Fix, 190 S. W. 328; Stafford v. Fizer, 82 Mo. 393; Rothenberger v. Garrett, 224 Mo. 191, l. c. 197; Keaton v. Jorndt, 259 Mo. l. c. 193-4-5; Allen v. McCabe, 93 Mo. 138; Gitchell v. Kreidler, 84 Mo. 472, which announce the. rule that in order that title may pass at an execution sale under k judgment for general taxes it is not necessary that a cestui que trust should have been made a party defendant in the tax suit, but if not-made a party'such cestui que trust has the right to redeem from the purchaser at the sale; ‘ Talbot v. Roe, 171 Mo. l. c. 432, which applies the above rule to a sale under a vendor’s lien judgment where the subsequent grantees of the vendor’s vendee were not made parties defendant in the vendor’s lien sujt; Corrigan v. Bell, 73 Mo. 53; Olmstead v. Tarsney, 69 Mo. 396; Keating v. Craig, 73 Mo. 1. c. 509, which hold that under the Kansas- City Charter "(providing that if any person interested in land sought to be charged with the-payment of a special tax was not made defendant in the action to enforce the lien he should hot be affected by a judgment therein or a'sale thereunder but might redeem from the purchasers) a cestui que tru§t not made a party to the special tax bill suit had the right to redeem from the purchaser at such sale ; Morey Engineering and Construction Co. v. St. Uouis Artificial Ice Rink Company, 242 Mo. 241, holding that the lien of a special tax bill for street improvement issued under the St. Louis Charter is prior to the lien of a deed'of trust which antedates the tax bill, and that the ✓word “owner” in Section 25, Article 6, of said charter includes incumbrancers (In the above suit the cestui que trust was made party defendant); Jaicks v. Oppen-Reimer, 264 Mo. 693, which holds that a special tax bill issued under the Kansas City Charter is prior to the lien of all special tax bills which antedate the given tax bill; and Vance v. Corrigan, 78 Mo. 94, which holds that the word “owner” in the provision of the Kansas City Charter relating to suits to enforce special tax bills, includes the real owner, if known to the person bringing suit upon the tax bill, but if the real owner is not so known the charter provision is met by suing the record owner.

After a careful examination we have reached the conclusion that the opinion of the Court of Appeals does not conflict with the decisions above enumerated.

In this case the Court of Appeals were called upon to construe the St. Louis Charter, under which the special tax bills were issued. That Charter (Art. 6, sec. 25) provided that “said , tax bills shall be and become a lien upon the property charged therewith and may be collected of the owner of the land and in the name of the contractor as any other claim in any court of competent jurisdiction; ’ ’ the section further provides that unless proceedings shall have been commenced to collect the same within two years from the maturity of the tax bill and-still be pending the lien of the tax bill '“shall be destroyed and of no effect against the land charged therewith. ’ ’

This court in the Morey Engineering Co. case, supra, had already held that the word “owner” in said charter included incumbrancers. The Court of Appeals was required to decide the further question, whether under said charter provision the lien of the special tax bill against the interest of an incumbrancer in said land was destroyed by a failure to make said incumbrancer or his successor in title a party defendant, within two years from the maturity of the tax bill, in a suit brought to collect the tax bill.

The Court of Appeals held that the lien of the special tax bill was destroyed as against the interest' of the cestuis que trustent by reason of the failure to make them parties defendant within the two-year period prescribed by the charter.

We are unable to find where we have ever passed upon this question. Certainly not in the decisions above mentioned. We are not here concerned with the correctness or incorrectness of such holding, but are_ dealing" merely with the question of conflict.

' Finding no conflict in the opinion assailed it follows that our writ, was improvidently granted and • should be quashed.

It is so ordered.

Walker, Faris, Blair and Graves, JJ., concur; Bond, C. J., concurs in result; Woodson, J., not sitting.