76 Mo. App. 58 | Mo. Ct. App. | 1898
The statute, section 1405, authorizes the property owner within ten days after the contract for paving is let to notify the city engineer that he desires to pay in five equal instalments.- That in such case, on the completion of the work, the engineer shall issue to the contractor five separate bills, each for one fifth the total amount due for the work and each drawing a specified rate of interest. The tax bills in suit were issued under this provision and each bill recited that it was for one fifth the work and that it was one of five -bills issued under the statute aforesaid, the terms of which statute are as follows :
“Provided, the owner of any lot or parcel of.ground fronting on such street shall, within ten days after the letting of the contract for such Work, notify the city engineer, in writing that he desires to pay for such work in five annual payments, then the city engineer shall make out five separate special tax bills, each for one fifth part of the cost of such work, bearing interest as aforesaid, which rate shall be fixed in each case by ordinance— each payment to bear not to exceed ten per cent interest from date of issue to date of payment, which rate shall be fixed by ordinance — said interest payable semiannually on the first days of February and July of each year at the office of the city treasurer; and if default is made in the payment of interest due on either of said days, then the principal and interest due on such special tax bills shall become then and there due and payable and may be collected as provided in section 1407.”
It is not clear that this rule has direct application to this ease. But rather that other rule which declares
What then is the true meaning of the statute in declaring that “interest must be paid on the first days of February and JuLy of each year, and if default is made in the payment of interest due on either of said days, then the principal and interest due on such special tax bills shall become then and there due and payable,” etc.
In our opinion the statute means that if there is a default in the payment of interest, then only the bill or bills defaulted will become due by reason of the default. The context of the statute shows that the expression, “such special tax bills” should be interpreted as though it read “such special tax bills as may have been defaulted shall become then and there due and payable.” It will be noticed that a default in the payment of the principal sum in any bill is not provided for. So that if the property owner on the day the first instalment became due should pay the interest on all the instalments but default as to the principal of the first, the remaining instalments clearly would not be affected.
But, if defendants’ position is correct, it follows as a necessary result from such position, that notwithstanding he should pay the principal of the first instalment and the interest on the remainder, the remainder would nevertheless immediately become due by reason
Nor is it optional with the holder of the bill whether he will consider it to be due on default of interest, in so far as it would affect defendant’s rights. The words of the statute are that the bills “shall” become due. In speaking of a kindred question, concerning contracts expressed in mortgages providing an entire series of notes should become due and failure to pay either when payable, Judge Brewer, in Bank v. Peck, 8 Kan. 660, said:
“This clause is inserted in mortgages usually for the benefit of the mortgagee; but being a valid stipulation the mortgagor has equal right to insist upon it, and receive whatever advantage he can from its enforcement. "When the payor at the expiration of six months failed to pay the note then due, by the terms of the contract all three notes became due. The statute of limitations began to run oh all, and a subsequent purchaser purchased after maturity. The defendants therefore have a right to interpose any defense in this suit that they could if the original parties to the contract were the sole parties to the suit. 7 Wis. 446; 7 Paige, 180; 27 Eng. Com. Law, 27; 19 Wend. 103.”
In Hemp v. Garland, 3 G. & Dav. 402, the statute of limitations was considered in reference to a
In Harrison v. Reigor, 64 Tex. 89, two notes were executed each containing an agreement that a failure to pay that note when due should render both due. The statute of limitations of four years was pleaded. The court said: “This suit was commenced upon these two notes more than four years after the maturity of the one first falling due, and the statute of limitations having been pleaded, the question is: Was suit upon the last barred? That the effect of the agreement was to authorize suit or give a right of action upon the last note at the same time that it could be commenced upon the first can not be doubted. By the express terms of our statute of limitations it commences to run from the time when the cause of action accrues. It is immaterial from what cause a note becomes due so far as the right of the holder to enforce it by suit is concerned. It would seem to follow as a necessary corollary that the maker can, in the one case as in the other, avail himself of any failure to sue within the period of limitation. The purpose of statutes of limitation is ‘to compel the settlement of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests
So, in Angelí on Limitations, section 111, it is said: “Where a sum is payable by instalments and there is a stipulation that, upon default in one all shall become due, the statute runs as to the whole demand from the time of default made.”
The statute gives no countenance to the idea that the holder may declare the bills due at his option. The words are that the bills “shall become then and there due and payable.” This mandatory provision has the effect also to relieve an instalment tax bill case from the application of those decisions of the supreme court, State ex rel. v. Ross, 136 Mo. 273, which hold that a tender of the interest before sale under a deed of trust providing the debt should become due on default of interest, had the effect of relieving against such provision.
We therefore conclude the position taken here by the plaintiff that the provision of the statute declaring the bills to be due when there is a default of interest, is a forfeiture provision in favor of the holder of the bill which he may or may not enforce at' his pleasure, is unsound in its application to the legal rights of the owner of the property. It follows that since there was a default in payment of interest on all the bills in controversy more than two years before the suit was brought, they all were due more than two years and the action is barred.
The judgment will be reversed.