This is a suit on two special tax-bills issued under the charter provisions of the city of St. Louis. Plaintiff recovered and defendants prosecute the appeal.
There is no bill of exceptions before us and the matters open for consideration arise entirely on the face of the record proper. The questions for decision are two in number: The first relates to defendants’ plea of the Statute of Limitations which seems not to have been formally denied by filing a reply though the case was tried as if one had been duly filed, and the second .pertains to the fact that the petition discloses one of the defendants was neither named in the taxbills nor notified of their issue, as is essential under the charter in case of an owner of property. It appears two taxbills were issued in payment for street improvements adjacent to defendants’ property and when issued, the Belle Bryan Clopton Estate was named therein as the owner of the property on which the lien is sought to be enforced. From the allegations of the petition, we are informed that these taxbills were thereafter reissued and re-registered by the city authorities and instead of the Belle Bryan Clopton Estate being named as the owner, the heirs were substituted therefor. In other words, in the amended taxbills, the defendants, Malvern B. Clopton, William H. Clopton, Jr., and Emily Bryan Clopton were named as the owners of the property. It appears, too, that the defendants named in the amended taxbills are the heirs of Belle Bryan Clopton, deceased. The averments of the petition go to the effect that the three defendants named in the taxbills, Malvern B. Clop-ton, William H. Clopton, Jr., and Emily Bryan Clopton, were duly notified of the issue of such taxbills by the service of process on them in accordance with the provisions of the city charter under which the bills were issued. The petition is in two counts, the first of which declares on one of the taxbills and the second count on the other.
The answer denies that Malvern B. Olopton, William H. Olopton, Jr., and Emily Bryan Olopton are owners of the property sought to be charged with the lien and asserts an estate in the defendant, William H. Olopton, their father, by curtesy. It furthermore pleads the Statute of Limitations against the lien of the tax-bills sought to be enforced. The limitation thus pleaded is that provided in section 25 of the charter of the city of St. Louis as amended in 1901. [See An. St. of Missouri, 1906, vol. 4, pp. 48, 63, 64, 65.] Plaintiff omitted to file any reply whatever to this answer but the case proceeded as though the plea of the Statute of Limitations was traversed and the court found the issue for' plaintiff to the effect that the lien was not barred by the statute referred to.
On appeal, the defendants argue the judgment of the trial court may not be sustained on the record proper for the reason the answer pleads the Statute of Limitations of two years and this defense was confessed because of the fact plaintiff omitted to file a reply denying it. Of this argument it may be said first that though no reply was filed denying that the Statute of Limitations barred the lien, the case was tried throughout as if it were traversed. For defendants to avail themselves of this matter on the face of the pleading on ac
But it is argued by defendant, William H1. Clopton, Sr., that the judgment enforcing the lien of the taxbills as it affects his interest in the property as life tenant should be reversed for the reason he was not named in the special taxbills and received no notice whatever of their issue as owner. The question must be determined from what appears on the face of the record proper alone. As before stated, the petition reveals the suit to be one in which the lien of two special taxbills is sought to be enforced against the real estate therein described. Defendants, Malvern B. Clopton, William H. Clopton, Jr., and Emily Bryan Clopton are averred to be owners of the property and the petition avers as well that due notice of the issue of the taxbills was served on these defendants by the city marshal in accordance with the provisions of section 25 of the charter of the City of St. Louis. It sufficiently appears from the petition that William H. Clopton, Sr., was not named in the taxbills as owner of the property and that no notice of their issne was given to him as it was to the parties whose names appeared therein. There is no question in the case as to the sufficiency of the taxbills on account of a failure to name the three defendants mentioned as owners nor for failure to notify them as the charter prescribes. The question to be considered relates entirely to the omission to name William H. Clop-ton, Sr. in the bills as owner and the- omission in respect of serving notice on him of their issue by the city marshal. The only averment contained in the petition with respect to William H. Clopton, Sr., is that plaintiff
It is entirely clear that the petition does not treat this defendant as an owner of the property. Indeed, it proceeds as though the pleader were uninformed as to his interest, for besides averring specifically that his co-defendants owned the property, it merely recites that he has some interest therein and is made a party to the end that he may set it up and defend, if so advised. But defendant argues that it conclusively appears on the face of the record he was the owner of the property in the sense of the law as life tenant and that his codefendants were remaindermen only. The answer set forth the fact that this defendant, and not those named in the taxbills, was the owner of the property and averred him to he a life tenant by the curtesy. It is urged these facts stand admitted on the record for the reason plaintiff omitted to file a reply thereto. Of this argument, it may be said again, as was before reasoned with respect to that pertaining to the Statute of Limitations, that the record discloses the case was tried throughout as if a reply had been filed. When such appears to be true, a defendant will be treated as having waived his right to invoke admissions in the pleadings by omitting to move for judgment thereon in the trial court. To the end of supporting the judgment on the record proper, the appellate court will, in such circumstances, treat the admissions invoked in the pleadings as having been traversed and put at issue by a competent reply. [Roden v. Helm, 192 Mo. 71, 83, 84, 85, 90 S. W. 798; State ex rel. McKown v. Williams, 77 Mo. 463.] On the issue thus made, the court found the facts when viewed after verdict as though defendant had some interest other than that of life tenant, for judgment was given as if he is an interested party notwithstanding the fact no notice of the taxbills was served upon him. If the court had found’ defendant to be an owner within the meaning of the
It is entirely clear that it is not admitted on the face of the record defendant is either a life tenant or owner of the property within the purview of the charter. So far as this record is concerned, he stands as a person having an interest in the property such as a lessee who might well enough be made a defendant to the action for the purpose of subjecting his interest to the lien, but not entitled to notice as owner.
The charter requires notice to be given only to the owner or those named in the taxbills. This defendant was not named in the bills and it does not appear that he was the owner. The judgment should be affirmed. It is so ordered.