150 Mo. App. 188 | Mo. Ct. App. | 1910
-The question for decision in this case relates to the priority of lien between two special taxbills issued against the same property for different improvements. The court adjudged a priority to the lien of the taxbill which was prior in point of time and defendant, who is the holder of the junior bill, prosecutes the appeal.
Plaintiff instituted the suit on its taxbill, which is the one first issued against the owner-of the property, to the end of enforcing its lien thereon. The Skrainka Construction Company, who had improved the property subsequent to the issue of plaintiff’s bill, became a party defendant- to the action as one having an interest in the subject-matter, and prayed that the lien of its taxbill be-declared prior to that of plaintiff, but the court adhered to the rule Avhieh generally obtains throughout the law of liens to the effect that the lien prior in point of time should be given priority as to the means of satisfaction.
Both taxbills involved were issued under the provisions of the charter of the city of St. Louis. The bill sued on by plaintiff bears date November 22, 1904, and was issued in compensation for labor performed and materials furnished in improving a street adjacent to the lot of the owner named therein, who was the original defendant in this action. The taxbill owned by the Skrainka Construction Company is dated January 23, 1906, and was issued to it in compensation for labor performed and materials furnished in constructing an alley adjacent to the same lot which Avas owned by the original defendant.
On behalf of the defendant Skrainka Construction Company, holder of the junior taxbill, it is argued here that its lien should be declared paramount and prior for two reasons, as folloAArs: It is said, first, tax liens
For the purpose of effectuating the extraordinary powers conferred on the government to the end of sustaining itself, a sound public policy ordains that the last lien for general taxes shall prevail over all prior liens of the same nature, in order to meet the urgent necessities of an immediate collection of the revenue. In this vieiv, the rule obtains to the effect that as the state has the right - to enforce its lien for each succeeding back tax, the purchaser under the proceedings had to foreclose the last or junior lien shall receive a paramount title to one who has purchased under the foreclosure of a prior lien. Besides the cases above referred to, see Land & Lumber Co. v. Bippus, 200 Mo. 688, 98 S. W. 546; Excelsior Springs v. Henry, 99 Mo. App. 450, 73 S. W. 944. However, it has been decided in this state that the priority of the lien for general city taxes is not such as to completely divest that of a special tax-bill of a date prior to the tax for which the property is sold. [Excelsior Springs v. Henry, 99 Mo. App. 450, 73 S. W. 944.] But the same considerations of public policy which obtain in aid of sustaining the government do not apply with respect to the enforcement of the liens of special taxbills. Indeed, while the theory of special assessments is referable in its origin to the taxing power, the assessment is not considered as a tax in the true sense of that term, but on the contrary the amounts or value they represent are regarded as assessments for which the owner of the property has received an equivalent or compensation in the form of im
It is clear enough, when we consider the fundamental distinction between special assessments and the purposes for which general taxes are laid and collected, that the reason which renders the last subsequent tax lien prior to the one for a preceding year does not obtain with respect to the lien for such assessments.
It is a well-settled rule as to both legal and equitable liens, that, in the absence of statutory regulations to the contrary, the lien which is prior in time gives a prior claim and is entitled to satisfaction out of the subject-matter before other subsequent liens binding the same property. [Rankin v. Scott, 12 Wheat. U. S. 177, 6 L. Ed. 592, 25 U. S. 177, 25 Cyc. 678; Jones on Liens, sec. 96.] We perceive no special reason why the lien of taxbills representing special assessments for improvements should be treated different from others unless, a special prerogative to one be given by the statute itself. The case of Burke v. Lukens, 12 Ind. App. 648, involved the question of priority between the lien of two tax-bills for special assessments as here and the court declared the junior lien to be superior to the one represented in the first taxbill issued. But that case turned upon the peculiar wording of the Indiana statute which created the liens of both bills. The Statute of Indiana, section 4290, R. S. 1894, provided that assessments for street improvements “with the interest accruing thereon, shall be a lien upon the property so assessed and shall remain a lien until fully paid, and shall have precedence over all other liens excepting taxes.” On this statute it was reasoned by the court that as each lien represented by a special taxbill was declared to have precedence over all other liens, excepting taxes, then the lien represented by the last special taxbill issued necessarily prevailed over the lien of the same nature
The present special taxbills were both issued under the provisions of section 25 of the charter of the city of St. Louis, as amended in 1901. See An. St. of Missouri, 1906, pp. 4863, 4864, 4865. Upon a careful inspection of this and other provisions of the charter, we have been unable to discover any word therein indicating that the lien of a subsequent taxbill shall prevail over a prior lien of the same character and it is only where the statute so provides that such priority may be declared. [25 Am. and Eng. Ency. Law (2 Ed.), 1236, 1237; State v. Aetna L. Ins. Co., 117 Ind. 251; Pittsburgh’s Appeal, 40 Pa. St. 455.]
The judgment should be affirmed. It is so ordered.