McGuire v. Brockman

| Mo. Ct. App. | May 14, 1894

GIill, J.

This is an action on special tax bills-issued for the construction of sidewalks in front of defendant’s property in Kansas City. The evidence tends to prove that shortly after the bills were issued and before this suit was brought, defendant Brockman made a tender of the full amount due to Christopher McQ-uire, the husband and agent of the .plaintiff, but such tender was refused.

It is upon this tender alone defendants rely to-defeat the action. The tender was not followed with a deposit in court; but the contention is, that the mere tender before suit was brought for the amount due on the tax bills, ipso facto, satisfied and wholly discharged the bills. The lower court declined to adopt this theory and the defendants appealed.

I. To sustain their position defendant’s counsel rely on the old common law rule relating to mortgages, that a tender made at the law day and refused, satisfies the condition of the mortgage as fully as if payment had been made, and revests the estate in the mortgagor. Conceding for the sake of argument, that a special tax lien is in the nature of a mortgage or deed of trust-to secure a debt, and we find that our supreme court-has effectually disposed of defendant’s contention; and has decided, that the only effect of a tender without subsequent deposit is to stop interest, and that it does not discharge the security.-

Landis v. Saxton, 89 Mo. 375" court="Mo." date_filed="1886-04-15" href="https://app.midpage.ai/document/landis-v-saxton-8008738?utm_source=webapp" opinion_id="8008738">89 Mo. 375, was a suit in equity to enjoin the sale of real estate under a deed of trust which had been executed by "the plaintiff, the „ dispute-being as to the amount d.ue on the debt secured. Landis alleged and introduced evidence tending to prove the tender, before suit brought, of the amount called for by the deed of trust after giving himself credit for $1,000 to which he said he was entitled. Defendant denied the right to any such credit and asked in his cross bill for a foreclosure of the deed of trust. In answer to the claim made in counsel’s brief, that “the tender had the effect to satisfy the lien of the mortgage,” Judge Black, speaking for the court, uses this language: “Section 1008, Revised Statutes, provides that ‘where a tender and no deposit shall be made as provided "in the preceding section, the tender shall only have the effect, in law; to prevent the running of interest or accumulation of damages from and after the time such tender was made.’ While a tender was made by plaintiff to the defendant on the tenth of June, 1881, we do not understand that any deposit' of the money tendered was ever made in court, and the only effect of the tender, if sufficient in amount, was to stop the running of interest. The tender can not have the effect to deprive the defendant of his security created by the deed of trust for so much as may be found due at the time the tender was made.” The learned judge then further admits the existence of authorities, holding that where a tender has been made of the amount due it discharges the lien, but says that even in those cases where the party seeks to have the incumbrance satisfied payment of the amount due at the date, of fender must be made. uBut so far as this case is concerned ,” says the court, “the statute before quoted is conclusive; and as before stated the only effect of the tender was to stop the running of interest.”

It will be seen by a close inspection of the opinion in the Landis case, and from which we have liberally quoted, that our supreme court has construed the statute on tenders as a modification of the old common law rule before stated, and practically declares that a tender of the amount due on the mortgage debt does not extinguish the mortgage security, and that the only effect thereof is to stop the accruing of interest. .

In view of this announcement by the supreme court, we are relieved of further comment on the numerous authorities collated by defendant’s industrious counsel. We think the statute referred to in Landis v. Saxton (sections 6210, etc., R. S. 1889, in practice before justices of the peace, and 2937, etc., relating to proceedings in circuit courts) must control the decision of the case at bar. Iff defendant Brock-man, before suit brought on these tax bills, made a tender to the holder or her agent of the amount then due thereon, but failed to keep the tender good by deposit in court, then the effect of such tender was only to stop the running of interest called for by the bills, .and nothing more.

Tender is not payment. Raymond v. McKinney, ante, 303. And yet if defendant’s contention is correct it would be treated as payment, since there is no personal liability for the amount of such special assessments as this. An administration of legal principles that would lead to this absurdity should be avoided.

These special assessments for street improvements are not taxes in the proper and usual sense, but are charges made for improvements done to the owner’s property for which he is called on to compensate. They are not considered burdens “but as an equivalent or compensation for the enhanced value which the property derives from the improvement.” City to use of Coates v. Ridenour, 84 Mo. 253" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/city-of-kansas-ex-rel-coates-v-ridenour-8008155?utm_source=webapp" opinion_id="8008155">84 Mo. 253-258, and authorities cited. There is no force then in the last point made in defendant’s brief.

The judgment of the circuit court is affirmed.

All concur.