220 S.W. 675 | Mo. | 1920
Lead Opinion
This is a suit to enforce the lien of special tax-bills issued by the City of St. Joseph for street improvements. The petition, naming Mary J. Gibson and Buchanan County as defendants, was filed January 31, 1916. Summons issued in due course to both, but was served on Buchanan County only. At the time the suit was instituted Mary J. Gibson was dead, and when this fact was discovered by plaintiff the lien of the special tax-bills had expired by limitation against all persons not then made parties to the suit. At the time of her death said Mary J. Gibson was the sole record owner of the property on which the tax-bills were a lien. At the date of the institution of the suit, Buchanan County was the owner and holder of certain notes that had been given by Mary J. Gibson in her lifetime and which were secured by a first mortgage or deed of trust on the lot on which it is sought to enforce the lien of the tax-bills; it had and has no other interest in the property.
Buchanan County made default. After hearing the evidence, the court held that plaintiff could not enforce the lien of its tax-bills against the lien of Buchanan County on the lot in question, for the reason that no person owning any interest in the fee therein was made a party to the suit. Judgment for defendant, and plaintiff appeals.
The City of St. Joseph is a city of the first class and the lien of its special tax-bills and the method of enforcing it are created and prescribed by Section 8711, Revised Statutes 1909. The provisions of this section, pertinent here, are as follows: *78
"Any of the owners of the land charged, or of any interest or estate therein, may be made defendants, but only the right, title, interest and estate of the parties made defendants in any suit shall be effected or bound thereby or by the proceedings therein. . . . Any such special judgment shall bind all the right, title, interest and estate in the land that defendants, and each of them, owned at the time the lien of the tax bill commenced, or acquired afterwards, and a sale on execution thereon shall vest all of such right, title, interest and estate in the purchaser, and discharge the lands from liens or incumbrances thereon; . . . In case the owner of any undivided interest or particular estate in any land charged be compelled by suit to pay, on account of any such tax bill, more than he ought equitably to pay, as between him and others interested in the property, such owner shall be subrogated to the lien of such tax bill, and may, by proper proceedings in any court of competent jurisdiction, enforce such lien, and have the equities between such owner so paying and such other owners or parties interested in the land adjusted, though such other owners or parties interested were not parties defendant to the original suit on the bill, and though such subsequent proceedings be commenced after the expiration of two years from the issue of the bill, or the party so paying shall be entitled to contribution or repayment from others, according to equity, without enforcing the lien."
Within the purview of the statute the suit to enforce the lien is in the nature of a proceeding in rem, but only "the right, title, interest and estate of the parties made defendants" are affected or bound by it. If no one having any "right, title, interest or estate" in the land charged with the lien is a party defendant, the court is wholly without jurisdiction of the subject-matter. [Allen v. McCabe,
An important preliminary inquiry is, what interest or estate, if any, has a mortgagee in the mortgaged premises? The mortgage of the present day is the product of evolution, and the decisions of the courts respecting some of its characteristics are apparently more or less incongruous. For example, we hold that after condition broken the legal title to mortgaged land vests in the mortgagee and he can maintain ejectment, yet we further hold that such vesting of the title is for the protection of the debt and for no other purpose, and when the debt is paid the mortgagee's interest is extinguished without reconveyance. Notwithstanding a few attributes that still inhere in it as a result of its common law origin, a mortgage, or deed of trust in the nature of a mortgage, given on land to secure the payment of a debt, is now regarded in this State as being, in its last analysis, a lien and nothing more. [Dickerson v. Bridges,
II. One of the principal objects sought to be attained by the statute under consideration, in the enforcement of the liens of special tax bills, conformably to the general policy of the law in the foreclosure of all liens by suit, is to produce, as far as possible, at the execution sale a perfect title.Why a Necessary While a mortgagee or other lienor does not haveParty. any right in or to the land itself, he does have a right to have it subjected to the payment of his debt, and unless he is a party to the proceeding this right by the express terms of the statute is unaffected thereby. He is, therefore, a necessary party, not to give the court jurisdiction of the interest in the land subject to his lien, but in order that the lien may be discharged, and his right to redeem from the superior lien of the tax bill be foreclosed. [Stafford v. Fizer,
According to the views herein expressed the judgment of the trial court should be affirmed. It is so ordered.
Brown and Small, CC., concur.
Addendum
The foregoing opinion of RAGLAND, C., is adopted as the opinion of the court. All of the judges concur. *82