115 Mo. App. 510 | Mo. Ct. App. | 1906
— Action upon a special taxbill issued under the provisions of Revised Statutes 1899, section 5686, on account of the construction of a sewer in the city of St. Joseph. The bill, when delivered to the contractor on February 2, 1901, stated that Amanda Corby was the owner of the property charged with the lien. Mrs. Corby died in 1899, and on the date of the bill and thereafter the defendant, Zeilda Forsee, was the owner of the property by inheritance from her. When the bill was issued, neither the city engineer nor the contractor knew of the death of Mrs. Corby, and her name was inserted as owner because she appeared as such in the public records, but within thirty days after he received the bill the contractor made verbal demand upon defendant, as owner, for payment. His demand was refused and this suit was brought by the contractor on April 14, 1902, against defendant as owner by inheritance from Mrs. Corby. No amendment of the taxbill was made to state the name of the real owner, but nevertheless, at the first trial of the cause, the taxbill was received as prima facie evidence of its recitals and plaintiff recovered judgment thereon. Defendant appealed to this court and we reversed the judgment and remanded the cause for another trial upon the ground that, as the taxbill failed to show upon its face defendant’s ownership of the property, it could not. be received as prima
At the second trial, defendant admitted all of the allegations of the petition and that plaintiff had demanded payment of defendant within thirty days after the hill was issued. The taxbill was not offered in evidence and no amendment thereof was made; therefore, the name of defendant does not appear in that instrument as the owner of the property. Under these admissions, the court gave plaintiff judgment for the face of the bill, hut, following our opinion in the case of St. Joseph v. Forsee, 110 Mo. App. 237, refused to enforce any penalty against defendant. From this judgment plaintiff appealed and is insisting that he should have been allowed, under Revised Statutes 1899, section 5686, interest upon the principal sum at the rate of ten per cent per annum from thirty days after the date of the issue of the bill for a period of six months, and thereafter at the rate of fifteen per cent per annum. The fact that a demand for payment was made of defendant is greatly relied upon as an aid in fixing a liability upon her for this interest, so called, and plaintiff seems to think that the opinion of the Supreme Court in the case of Barber v. Peck, 186 Mo. 506, 85 S. W. 387, malees this fact determinative of the question before ns. Plaintiff misunderstands that opinion. The penalty (inaccurately termed interest) was allowed there from the date of the demand made upon the real owners because the law, under which the taxbill was issued, provided that the penalty should run from the date of demand. Section 5686 contains no such provision, but imposes the penalty regardless of demand for payment. Therefore, demand in cases falling within its purview has no hearing upon the right to enforce the penalty. The failure of the owner, against whose interest in the land the tax-bill has been lawfully and regularly issued, to pay it
The Peck case, instead of being an authority favoring the contention of plaintiff, follows the principles that controlled our decision in the G-ibson case. It is held that the “interest” fixed by the statute is not interest at all, that is to say, it is not a consideration provided for the use of money, but it is a penalty inflicted as a punishment for the breach of a duty. And further the right to enforce the penalty by demand made during the time the taxbill failed to show the names of the real owners against whom the suit was afterwards brought, was denied, notwithstanding the demand was made upon one of the owners, who at the time was acting as the executor of the estate, stated in the taxbill to be the owner. A few days before the suit was brought against the real owners, their names were by amendment inserted as owners in the taxbill, but although the Supreme Court recognized the doctrine of relation, it refused to apply it in that case, saying: “While it was competent to amend the taxbill, this amendment did not relate to the demand on Stephen Peck, as executor, so as to place them in default at a time when no taxbill existed against them.”
Penalties are not favored by the law and it may be stated as an axiom that one may not enforce a penalty until he has himself met every requirement necessary to put his adversary in the wrong. Plaintiff thinks that in fulfilling all of the requirements necessary to give him a lien upon defendant’s land for a proportional cost of the construction he has done all required of him for the enforcement of his penalty, but this is not so. His right to a lien arises from the fact that he has, in the
It follows that no error was committed in excluding the penalty, and accordingly, the judgment is affirmed.
