197 Mo. App. 447 | Mo. Ct. App. | 1917
This is an action upon two special taxbills, one issued * against lot 68, the other against lot 69, in city block 4584 of the city of St. Louis, both lots owned by defendant, each taxbill dated April 1, 1903, the first against lot No. 69 for $768.16, the second against lot No. 68, in the same block, for $768.13, the tax-bills being divided for payment into seven installments as provided by the ordinance and charter of the city. Judgment is prayed for these several amounts with interest on the installments, first at six per cent, per annum, then at eight per cent, per annum, as provided by the Charter.
The answer of defendant, after a general denial, ifi substance dentes that he is the owner of any lots of ground described or designated as lots No. 68 or 69 in city block 4584, and avers that that block has never been
A general denial of the averments of the answer was filed by way of reply. The cause was submitted to the court, a jury being waived, and having been taken under advisement, the court, making and filing a finding of facts, entered judgment in favor of plaintiff on the several taxbills for their amounts and interest. Filing a motion for a new trial and saving exception to that being overruled, defendant has duly appealed.
As stated by learned counsel for appellant, the question presented in this appeal relates to the lawfulness of the method of establishing the special assessment district in this particular case. Those counsel further state that there is no doubt that the taxbills are for work done pursuant to a valid ordinance; that no defense is made on the ground that the improvements were not done in accordance with the contract; that there is no doubt that the bills were issued with all the necessary formalities, nor that they were properly served in the manner required by law. They are attacked by appellant, as his
With this very frank admission and statement of the issues, learned counsel for appellant contends that the trial court erred in holding that the tracts here involved constituted two lots, numbered respectively 68 and 69, in city block 4584, of the city of St. Louis.
A mass of testimony was introduced by the respective parties tending to show the manner in which this 'city block had been laid out and subsequently treated by the owners of the several pieces or tracts of land in it.
That testimony is well summarized by the learned trial judge in his finding of facts and having satisfied ourselves that his finding is sustained by substantial testimony, we follow it, although not verbatim, as far as we think necessary to an understanding of the facts, omitting matters we think not now essential.
He finds that the taxbills had been issued regularly and constituted valid liens against the respective properties therein, “if the area district was properly located by the special tax assessor’s office of the city of St. Louis.” He then finds that Julius Pitzman, as county surveyor, at the instance of the executors of William M. McPherson, in the year 1873, had made a survey and plat of what was there designated “Subdivision of the McPherson homestead tract,” which included the lots in controversy, and now owned by defendant; that these lots were marked on this plat as lots 68 and 69; that this plat designated an avenue thereon, seventy feet wide, called McClure avenue, but now Washington boulevard, which bounded these lots 681 and 69, and other lots described, on the north. He further finds that this plat was not signed and acknowledged by the trustees nor recorded; that the owners are the trustees of the property, sold lots in the year 1875 as marked on the Pitzman plat, and described them in their deeds as being
Reciting the issue of the taxbills and notice thereof to defendant, and that the last installment fell due April 11,. 1909, and no part had been paid and that this suit was brought to the June term, 1911, being filed in April, 1911, the court finds- that this suit was filed within the time limit required by the Charter. Finding the fact as to the acquisition of property by defendant as set out in his answer, and that he erected houses on the lots and had made improvements on them, the court finds that in making the improvements the defendant had erected one set of improvements on lot 68 and another on lot 69; so that the improvements on one lot did not extend to' the other, and in that way and to that extent defendant treated them as two separate lots. The court accordingly rendered judgment against defendant and for plaintiff, as before stated.
This, an action at law, heard by the court without a jury, comes to us as conclusively settled on the facts by the finding of the learned trial judge, provided there is substantial evidence to sustain that finding, and provided we think his conclusion on those facts is sound in law. Without attempting to discuss the numerous propositions of law so fully argued by learned' counsel for appellant, we think the conclusion arrived at by the court is correct. It has been the law of our State — now chapter 97, sections 10290-10297 — that persons laying off additions and subdivisions to cities, towns and villiages shall make, acknowledge, and file for record plats of the proposed territory as laid off and that penalties are prescribed for a failure to do this. It is true that no official plat of the subdivision in which these lots are situated was ever signed, ■ acknowledged or filed of record .in the office of the recorder of deeds. Our Supreme Court, however, has said in Baker v. Vanderburg, 99 Mo. 378, l. c. 390, 12 S. W. 462:
There is substantial evidence to show that all of the parties, including defendant, who had dealings or connection with this block of ground recognized it as part of the McPherson Homestead Susdivision and that could only come from a resort to this unofficial plat which had been made of the property at the instance of the owners by Mr. Pitzman.
It is also clear that the various purchases of the defendant, no matter how the land was described in his several deeds, do in fact cover that part of city block 4584, which is designated in the Pitzman plat as lots 68 and 69 of that block; that each lot fronts seventy-five feet on Washington boulevard and that they extend back from the south line of that street two hundred and forty-three feet and some inches to the'north line of a. twenty-foot alley, which runs east and west through that block.
We, therefore, think that the court was authorized, under the evidence in the case, in holding that by the acts of the parties, and particularly by the acts and knowledge of defendant himself, these lots 68 and 69 are lots in the subdivision of the McPherson Homestead Tract, and in city block 4584, and correctly referred to by such numbers in that plat as part of that block in the various deeds to property in the block and in these special taxbills. In various deeds to property in the block it is referred to as in this block. That city block is fully marked and described in the Pitzman survey. So that we think that notwithstanding the failure of the owners to acknowledge and file and record the plat, defendant is bound by the description of the lots as there contained. That being so the assessment against him for special improvements as by the lot numbers is correct.
We see no reason to disturb the finding and judgment of the trial court and that judgment is affirmed.