64 Mo. App. 248 | Mo. Ct. App. | 1895
Lead Opinion
The plaintiff sues to recover from the defendants the amounts of state, school, and city taxes for the fiscal year 1892, which were assessed and levied against certain real estate situated in the city of St. Louis. The court overruled a demurrer to the petition, and, upon the refusal of the defendants to file other pleadings, rendered a judgment for the amount of the taxes. The defendants have appealed.
The substantive facts stated in the petition are these: On the twenty-fourth day of April, 1851, Way-man Crow was the owner of the property, and on that day he leased it to Thomas T. Gantt and the defendant George I. Barnett for the term of forty years, beginning on the first day of July, 1851, and ending on the first day of July, 1891. In consideration of the letting, Gantt and Barnett agreed and covenanted in the lease “that they would duly and fully pay and discharge all rents, assessments, taxes, and imposts or charges whatever, which should during the continuance of the term of said lease be laid, levied or charged upon, or on account of said property,” etc. The defendants had refused to pay the taxes for the year 1892, and the plaintiff, in whom the fee had become vested, was compelléd to pay them in order to protect his estate. The petition also contained the allegation that the defendant Clare Gantt, prior to the expiration of the term, had acquired the interest of Thomas T. Gantt in the
Were the lessees, by the terms of the lease, liable for the payment of the taxes for the fiscal year 1892 is the only question raised by the demurrer, and is the only question discussed by counsel in this court.
If the language of the covenant is to be given its ordinary construction, or meaning, the lessees must be held to pay all taxes imposed, that is assessed, during the term. No other meaning can be well given to the word “laid.” The word “levy,” as used in the revenue law, has been construed by this court to be synonymous with the word collect, and it has been held that a tax can not be said to be levied until the books are placed in the hands of the collector. Valle v. Fargo, 1 Mo. App. 344. Under the law, as thus construed, the taxes here in question were not levied until long after the expiration of the lease. Whether this construction was correct-or not we need not say, for the defendant's covenant was broader than this. They agreed to pay all taxes which were laid (assessed) during the term, which presents quite a different question.
Accepting this interpretation of the word, counsel for appellants contends that the assessment of taxes consists of the original valuation placed on the land by the assessor, the subsequent equalization of values by the board of equalization, the adoption of the percentage for city taxes, and, finally, the extension of the tax on the tax book, and that, as the original valuation of the land for the taxes for the year 1892 was the only preliminary which preceded the expiration of the lease, it can not be said that the taxes were assessed during its existence. This position we do not think can be successfully defended. We do not think that the action of the county court or of the city
With the concurrence of the other judges the judgment of the circuit court will be affirmed. It is so ordered.
Rehearing
OPINION ON MOTION POE EEHEAEING.
The counsel for the defendants contends in an ingenious argument that the result reached by the opinion is inequitable, because it imposes on the defendant the taxes of forty-two years under a lease for forty. Such a result would be justified only if the terms used by the parties would admit of no other construction; yet, if they admitted of no other construction, the mere inequity of the result could not relieve parties from obligations voluntarily incurred.
We have decided in McManus v. Fair Shoe and Clothing Company, 60 Mo. App. 216, that a covenant on part of a tenant to pay taxes, unless a contrary intention clearly -appears, must be construed as one to pay them as part of the rent reserved. If, in the case at bar, the rent obligation was increased by reason of a subsequent change in the law bearing upon the date of the assessment and collection of taxes, a proper showing of such facts might have affected the extent of plaintiff’s recovery, and might have resulted in an apportionment of the taxes sued for between the landlord and tenant. It is evident, however, £hat such a question could not arise on general demurrer to the petition, as the propriety of such a demurrer is determined by the plaintiff’s right of recovery, regardless of its extent.
It results that the motion for rehearing must be overruled.