110 Mo. App. 237 | Mo. Ct. App. | 1905
— This is an action upon a special taxbill issued for building a district sewer in St. Joseph, a city of the second class. The bill was made out to “Amanda Corby estate” and recited that Amanda Corby was the owner of the property against which it was issued. It was dated October 5, 1900. Zeilda Forsee is the defendant. It is admitted that Amanda Corby died on the 10th day of January, 1899;
We cannot give our sanction to the claim made by counsel for defendant that in issuing the taxbill the fact that the engineer inserted the name of Amanda Corby as owner in the face of knowledge on his part of her death and of the fact that defendant was her sole heir is evidence, in the absence of other facts, of bad faith on the part of the engineer or of the contractor. The officer finding the record title in Amanda Corby honestly might hesitate to settle the question of the descent of her property. What he did was consistent with an honest purpose. The insertion in the bill of the name of Amanda Corby as owner will be treated as a mere mistake — not as the suppression of a material fact. It has been held repeatedly in this State that the existence of such irregularities does not affect the validity of the bill as a lien upon the property.
In the case of City of St. Louis v. De Noue, 44 Mo. 139, where this subject was under discussion, it was
Nor has the force of the rule been curtailed, as contended by defendant’s counsel, in the subsequent cases of Kefferstein v. Knox, 56 Mo. 1. c. 188 and Stadler v. Roth, 59 Mo. l. c. 402. In the former case the. name of the owner inserted by the engineer was erased by the contractor and the name of the real owner by him inserted — an unauthorized act; and in the latter case, the taxbill was amended by changing the name to that of the real owner but the amendment was made not by the engineer who issued the bill but by his successor in office — which was also an unauthorized act. In both cases the bills were held valid as liens but were excluded as prima facie evidence against the party named as owner. In other words, the holder was required to prove the facts contained in their recitals by evidence aliunde. In Stadler v. Roth, supra, it was said:
“We do not understand the case of Kefferstein v. Knox, 56 Mo. 186, as holding that an unauthorized alteration of the name of the owner in a special taxbill will utterly destroy the validity of the bill as a lien, but that in consequence of such alteration, it simply ceases to be prima facie evidence of the things enumerated in the statute. And as there can be no personal liability on the party named as owner, and such name*241 is required to be inserted as a matter of convenience to the parties, it would seem to be a sufficient penalty to impose upon an alteration in this respect, not made with a fraudulent purpose, to declare that the bill should cease to be prima facie evidence even against the party originally named in it as owner.”
In this court, in the case of Galbreath v. Newton, 45 Mo. App. l. c. 317, it was held: “A mistake in the name of the owner does not invalidate the taxbills. They may be amended so as to designate the true owner. ... As argued by defendant, the taxbill is the cause of action, and as a cause of action defectively alleged may be amended, so the irregularities or informalities in a taxbill are subject to amendment.”
To the same effect are the cases of Vieths v. Planet Co., 64 Mo. App. 1. c. 211, decided by our sister court at St. Louis, and Vance v. Corrigan, 78 Mo. 1. c. 97. There is nothing affecting adversely the conclusion reached in these cases in Jaicks v. Sullivan, 128 Mo. 177. The point decided there was that the real owner could not be made a party by amendment to a suit pending on a special taxbill after limitation had run against the bill. Recently, this court in the case of City of St. Joseph ex rel. Swenson v. Forsee, 110 Mo. App. 127, has followed the rule declared in these cases.
In our opinion the taxbill before us was at the time it was issued a valid charge against the property therein named, notwithstanding the mistake in the name of the owner. As such, it afforded a cause of action against the defendant upon which suit could be maintained. The effect of the amendment was to enable the plaintiff to use the bill as prima facie evidence against the defendant as to the validity of the charges against the propertytherein described and of the liability of the defendant. Had no amendment been made, proof of these facts by other evidence would have been required.
The validity of the taxbill as a lien upon defendant’s property is sustained because it represents a proportional part of the cost of the construction of an improvement authorized by law and. chargeable to defendant’s property under the statute upon the theory of a reciprocal benefit to the property. The completion of the work in accordance with the provisions of the statutes and the ordinance thereunder completes the right in the contractor to have an assessment made and taxbills issued to him by the engineer. Therefore, as stated, mere irregularities in making out the bill resulting from an honest mistake of the engineer are not sufficient to defeat or suspend the lien thus created. But the recovery of interest is controlled by an entirely different principle. The use of the word “interest” in the statute is a misnomer. It is not interest but is a penalty to which the owner is subjected for his neglect of duty in failing to pay. [ City of St. Louis v. Allen, 53 Mo. 57; Bank v. Woesten, 176 Mo. 60; Tipton v. Norman, 72 Mo. 380; Eyerman v. Blaksley, 78 Mo. 145.]
The same rule that excludes the taxbill as prima facie evidence against the real owner until his name is legally inserted therein as owner should apply to prevent the imposition of penalties upon him. The holder of such an irregular bill, who chooses to carry it, when by the exercise of small diligence he could readily have the irregularity cured, is in no position to exact a penalty against a person not named in the bill and who may not, on that very account, know of the existence of the lien against his property. It is
Tbe circuit court also erred in allowing interest at tbe rate of fifteen per cent per annum on tbe judgment. Tbe rate should bave been six per cent. [City of St. Louis v. Allen, supra.]
For these errors .the judgment is reversed and tbe cause remanded.