Vallé v. Fargo , 1 Mo. App. 344 ( 1876 )

Gantt, P. J.,

delivered thé opinion of the court.

This action was brought on a lease dated June 7, 1849, executed by Vallé to Michael, and by him assigned to defendant. It created a term, commencing on June 7, 1849, and ending June' 6, 1869, and, among the covenants, was the following on the part of the lessee, viz.: To pay the yearly rent of $800 in quarterly payments, “ and all taxes whatsoever to be levied during the term of this lease, including the taxes for the year 1849.” The petition alleged that this covenant was broken, in that the taxes for the city, State, and county for the year 1869 were $586.24, and that' defendant had refused to pay this sum. That plaintiff paid it, and he asks judgment for the amount and interest.'

The defendant denied all the allegations of the petition, except the making of the lease, and its assignment, and set up a counter-claim. Plaintiff, filed a reply.

• The cause was tried at great length, and many questions-are presented by the record which we do not consider essential to the determination of the controversy, under the view we take of the covenant declared on. The meaning of the words employed, omitting ‘ ‘ including the taxes for the year 1849,” was that‘lessee should pay all taxes levied during “ the term of this lease.” What was that term? Twenty years, beginning in 1849 and ending in-1869. When would the first payment become due, under this covenant, as to taxes?

It was assumed at the argument that the covenant was to pay “ all taxes whatsoever to be assessed during the term.”' We have seen, by an examination of the record, that “it was to pay” all taxes * * * levied during the term.”' There is a wide • difference between the two things. To assess a tax is to declare a tax to be payable; to levy it is-to raise or collect it. Bouv. L. Die. title Levy. One-of the first things done by the Parliament of England, after the revolution of 1688, was to pass an act declaring that, “ to levy money for or to the use of the crown by pretense-of prerogative, without grant of Parliament, is illegal.” 1 Bla. Com. 140. When an execution is issued for money, and comes into the hands of an officer, the levy of it — the-. satisfaction of it — is made by seizing the property of the-defendant. Wag. Stat., sec. 19, p. 606. To be sure, the-conversion of the thing seized into ’ money is made before' the execution is, in common parlance, said to be satisfied. But a levy is prima facie a satisfaction.

We think it is plain that there'is a wide difference between-taxes assessed and taxes levied, and no tax can be levied until the assessor’s return is made and acted on by the' County Court, and the books placed in the hands of the collector. This could not have been done, in the year 1849, before July, at any rate, as may be seen by the citations-made in Blossom v. Vancourt, 34 Mo. 390. Hence, the-State and county tax for the year 1849 could not have been levied until after the commencement of the term created by the lease in this cause.

This disposes of 'the matter, even if there had been no-addition of the words, “including the taxes for the year 1849.” This was only saying that the lessee should by all means, and without doubt, pay the taxes for 1849, as part-of those for which he stipulated.

No taxes were leviable for State, city, or county purposes, in 1869, before June 6th, and none were actually levied. It is admitted that the taxes for 1849, 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857, 1858, 1859, 1860, 1861, 1862, 1863, 1864, 1865, 1866, 1867, and 1868 were all paid — that is, they were paid for twenty years, including 1849. That is all which was deman dable of the lessee under the lease before us. It follows that plaintiff had no cause of action. The judgment of the Circuit Court is reversed, with costs, and final judgment is given for the defendant in this court.

All the judges concur.