208 Mo. 674 | Mo. | 1907
This is an action on the part of Elizzie W. Buchanan and Bettie P. Turner, commenced in the circuit court of Jackson county on the 24th day of June, 1903, to obtain an order on the clerk of the said court to pay over to them a certain fund of $350, which had been deposited with him by order of the court for the use of the petitioners or whoever might be entitled thereto, being a part of the certain sum of $8,000 which had been adjudged to the said plaintiffs for a certain tract of land that had been taken and condemned for public use as a park by Kansas City under ordinance 18,269 of Kansas City. It appears by the petition of the plaintiffs that a proceeding to condemn a parkway in South Park District in Kansas City, Missouri, was instituted on the 12th day of December, 1899; that under this proceeding the property in controversy herein was assessed and taxed, and the fund representing such assessment and tax was afterwards paid into court. As alleged in the petition, a proceeding was instituted on the 11th day of March, 1902, to open and establish a park in said South Park District, under which latter proceeding the property described in the petition was condemned and taken, and the title thereof subsequently confirmed and vested in the city. The petition alleges that the earlier proceeding to open and establish a parkway,
I. The only question before this court is whether or not the petition of toe plaintiff's states facts sufficient to sustain the order and judgment of the circuit court awarding them the fund of $350’. It appears from the petition that prior to the commence
The insistence of the plaintiffs is that although the condemnation proceeding’ to condemn the parkway for the South Paseo Extension had been commenced in the circuit court pursuant to the charter and had ripened into a verdict assessing the plaintiffs’ tract number 93 with benefits to the amount of $301.48 and this verdict had been confirmed on September 14, 1901, and this judgment afterwards affirmed in this court, June 20, 1902, that verdict and judgment was not a lien upon their said lands because they say Kansas City had not paid for and was not entitled to the possession of said Paseo Extension until February 12, 1903. On the other hand, it is the contention of the city that both at the time of the commencement of the Spring Valley condemnation proceeding and at the time of the payment of the money into court, the special assessment tax for the Paseo Extension parkway was a lien on the tract number 93 designated in said proceeding, and that under the decision of this court
In Ross v. Gates, 183 Mo. l. c. 347, this exact point was in judgment in this court. In that case, as in this, it was insisted that while the contractor might have had a lien on the land he would have no right to the fund in court which represented the land in a condemnation proceeding. But this court said in. that case, “When the money was paid into court, it represented, and stood in place of, the land condemned, and the claimants had the same right to and interest in the money that they had in the land.”
It is to be noted that plaintiffs plead the condemnation proceeding in the South Paseo Extension and. the assessment of the benefits against their tract of land No. 93 therein and that the verdict was filed and confirmed September 14, 1901. By the charter of Kansas City “the said assessments for benefits are a lien from the date of the taking effect of the ordinance in pursuance of which assessments are made and said proceedings instituted and- attach to the several lots or parcels of land so assessed and this lien continues until said assessment is paid or collected in full.” [Sec. 20, art. 10, Charter of Kansas City, 1889.] There is no allegation in plaintiffs’ petition assailing, the regularity or validity of the assessment against plaintiffs’ property in the South Paseo Extension condemnation proceeding and it must be assumed it was entirely valid. It is true it is now asserted in the brief of plaintiffs that said section 20 of article 10 of the charter is unconstitutional under the Federal Constitution because a denial of due process of law, and section 53 of article 4 of the Constitution of Mis
That this lien could be enforced by the judgment of the court in whose register the fund was deposited, we have no doubt whatever. This was settled, and rightly we think, in Ross v. Gates, 183 Mo. 338.
¥e can see no valid reason for holding that the special assessment for benefits which afterwards culminated in a judgment has abated. Surely it cannot upon any recognized legal or equitable principle be held to abate ipso facto, because years afterwards tbe lands upon which it is a lien are wholly appropriated to another public use, since as we have seen the lien follows the fund paid into court and binds it just as it did the land. We think the circuit court erred in overuling the demurrer. The demurrer should have been sustained and the $301.48 awarded to Kansas City for the use of the special fund for which the benefits were assessed!
Judgment reversed and cause remanded.