81 Mo. App. 104 | Mo. Ct. App. | 1899
The charter of Kansas City prescribes a two-year period of limitation on special tax bills and this suit was not begun until after that period had expired. To avoid the bar of the charter, plaintiff sets up that defendant agreed with him before the time had run to waive the limitation if he would not bring the action within the time and that he relying upon defendant’s promise refrained from instituting the action until after the limitation had expired. The section of the charter applicable is as follows:
“* * * Every special tax bill issued under, the provisions of this article shall be a lien upon the land described therein, upon the date of the receipt to the board of public works therefor, and such lien shall continue for two years thereafter, but no longer, except as in this article otherwise provided, unless suit shall be brought to collect the same within two years from the issue thereof, in which case the lien shall continue until the determination of the legal proceedings to collect the same, including any sale of the property charged; provided, however, that if such shall be brought within the two years the plaintiff or plaintiffs therein shall at the time, or within ten days after the commencement of suit, and not later than thirty days after the end of the two years, in person, by attorney or agent, file in the office of the city treasurer, a written statement showing the tax bills sued on, and when and in what court and against whom the said suit has been brought. The city treasurer shall, immediatelv after the filing of any such statement, note on the record of such tax bill the time of filing of such statement and the substance of the same. If the plaintiff or plaintiffs in such suit shall fail to file such statement within the time above limited the land described in the tax bill sued on shall be free from the lien of the tax bill and of any judgment in such suit, no matter when rendered, and shall not be sold in satisfaction of any such judgment. * * * ”
“Q. I will ask you to state now why you did not (bring suit within two years). Just state all the facts. If you had any contract or understanding with Colonel Case I wish you would please state the whole matter to the court. A. I went up to see Colonel Case several times about that tax bill — Q.' (interrupting). When was that with reference to the maturity of the tax bill; that is, the expiration of the two years? A. I suppose the last time I was there was about a month before the two years expired, and Colonel Case asked me if I would carry that tax bill over for him, and-I said I would; that if he said he would pay it I would carry the tax bill. That was just the conversation that took place, and he never told me in his life that he intended to' fight the tax bill until after the expiration of the two years.” .
The supreme court seem evenly divided on the question whether it is against public policy for a debtor to extend the period of the ordinary statute of limitation, Barclay, J., not expressing an opinion. Bridges v. Stephens, 132 Mo. 524. We held that the time prescribed by the statute could be waived. Dry Goods Co. v. Goss, 65 Mo. App. 55. But counsel for defendant distinguish the ordinary statute of limitation from the provision of the charter under consideration. The charter creates a lien nolens volens, against the property of the citizen. It prescribes a duration, that is, it brings the lien into existence for two years “but no longer,except as in this article otherwise provided.” And the exception is that suit shall be brought on the bill within two years. The effect of the allowance of plaintiff’s contention would be to add
It follows from the foregoing that the judgment should be reversed.