City of St. Louis ex rel. Creamer v. Bernoudy

| Mo. | Mar 15, 1869

Wagner., Judge,

delivered the opinion of the court.

This action was brought in the St. Louis Circuit Court to enforce the payment of a balance due on a special tax bill issued by the St. Louis city engineer, under a contract for constructing a district sewer. The legal title of the land sought to be charged with the payment of the tax is vested by deed in .Alex. J. P„ Garesche, as trustee, for the sole and separate use of Mary J. Bernoudy, who is a married woman and the equitable owner of the land. The city engineer made his assessment against the land, and made out the tax bill against the same in the name of Mrs. Bernoudy alone — the name of Garesche, the owner of the legal title, not being inserted in the bill at all. Both parties, however, were made defendants in the suit, but no judgment was asked for against Garesche. The Circuit Court, at special term, gave a personal judgment against Mrs. Bernoudy aird a special judgment against the property for the payment of the assessment. On appeal to general term, this judgment was modified so as to make it a judgment only against the property or separate estate of Mrs. Bernoudy.

The point is now made that the tax bill offered in evidence was no evidence against the land or defendant Garesche, he holding the legal title and his name not appearing on the bill. The law (Sess. Acts 1865-6, p. 298) declares that every such certified bill shall, in any action brought to recover the amount thereof, be prima facie evidence of the validity of the charge against the property therein described, and of the liability of the person therein named as the owner of the said property.”

The work is a charge upon the property from the date of the assessment, and the owner’s name is inserted in order that he may examine the correctness of the bill, and pay if he is satisfied with its justice, or defend his rights in case it is inaccurate or illegal, or the matter becomes involved in litigation. Although Garesche was the owner of the dry legal title estate, he had no beneficial interest therein, and no personal judgment could go against him in consequence of any lawful charge against him. I do not think that he is the owner contemplated in the clause of the law referred to. Mrs. Bernoudy possessed the entire equitable and beneficial estate. She had the absolute control of it, with power to divest the title from Garesche at pleasure. She was in truth the real owner; and while it was entirely proper to make Garesche a party to the suit, to afford him an opportunity of defending the title if any question arose in regard to it, the bill was well enough made out in the name of Mrs. Bernoudy. As the charge of tax is made a specific lien against the property, the provision that the bill shall be in the name of the owner seems to be more for the purpose of enabling the contractor to know whom to call on for his pay than anything else.

It is objected also that the judgment o£ the general term, modifying the judgment at special term, was erroneous. The judgment at special term was a personal judgment against Mrs. Bernoudy, and also special against the property; the general term modified this, so as to make it a judgment against the property only. This was right; the court had no power to render a personal judgment against a married woman, but it had full authority to give the judgment against her separate .estate, where the law expressly imposed a lien on it.

The point raised by counsel, that the general term had no right to modify the judgment, but that they should have either affirmed or reversed the cause, or given such judgment as the court at special term ought to have given, is too technical to require notice. The modification was, in effect, giving the judgment that the court below should have given, and the substance of the law was complied with.

There is no error in this record which would justify a reversal. Judgment affirmed.

The other judges concur.