author: WOODSON, J.

text:
    LAMAR LYNDON v. WAGNER ELECTRIC MANUFACTURING COMPANY, Appellant.
    Division One,
    December 2, 1920.
    1. CONTRACT: Extension: Harmless Error. It is error to exclude a letter by wbicb tbe defendant’s option to accept the contract sued on was extended seven months; but if within the extended time defendant neither accepted nor rejected the contract, its exclusion was harmless error.
    2. -: Termination. Where the' contract provided that the defendant might terminate the contract at the end of two years, it is not error to exclude a letter by which defendant attempted to terminate it at the end of eight months. And for like reason it is not error to exclude the answer of defendant, by which it attempted to terminate the contract one year after its date, to a former suit to recover a sum which defendant by the contract agreed to pay within the year.
    Appeal from St. Louis City Circuit Court.—Hon. Karl Kimmel, Judge.
    Affirmed.

      Albert Blair and Charles A. Houts for appellant.
    (1) The contract of March 2, 1912, and as modified hy the contract of April 12, 1912, gave the defendant the right to elect between operating as a licensee, and making an outright purchase of the patent. There is no evidence that defendant ever exercised its right of election, and until it did so elect there could be no liability on its part to pay either the royalty provided for, or the purchase price. (2) Paragraph two of the contract of March 2, 1912, is ambiguous in that it impliedly, though not expressly, gave the Wagner Company the right to withdraw from the contract, if within 40 days from its date, its investigation of the validity of the patent produced unsatisfactory results, Because of this ambiguity it was the duty of the court, in ascertaining the true meaning of the paragraph in question, to apply the following rules of law: (a) Whatever is implied in a contract is as much a part of the contract as though expressly set out. Southern Ry. Co. -v..Franklin Railroad, 44 L. R. A. 297; 6 R. C. L. p. 856; Lawler v. Murphy, 8 L. R. A. 133; Driver-Harris Co. v. Driver, ’70 N. J. Eq. 34; Driver-Harris Co.'v. Driver, 71 N. J. Eq. 271. (b) The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. 6 R. C. L. p. 838; Kauffman v. Dader, 108 Fed. 171. (c) The meáning of the paragraph in question being doubtful, plaintiff was bound by the interpretation which he and Mr. Layman* put upon it. ‘ 13 C. J. pp. 523, 524; Farley v. Pettes, 5 Mo. App. 262; Counts v. Medley, 163- Mo. App. 555; Bruner v. Wheaton, 46 Mo. 363. (3) Under' a proper interpretation of paragraph two of the contract, the defendant was only obligated to make the first payment of $750 if upon investigation it found the patent to be of. satisfactory validity. Defendant’s refusal to pay the $750, until it secured the modifications of the original contract, which-,are embodied in the contract of April 12, 1912, and its payment of that snm, upon the execution of the contract of April 12:, 1912, furnished a sufficient consideration for the modifying contract of April 12,1912. Adams v. Helm, 55 Mo. 468. The mutual agreement of the parties to modify the original contract furnishes a sufficient consideration for the modified contract. Domenico v. Alaska Packers Assn., 112 Fed. 554; Welsh v. Mischke, 154 Mo. 'App. 728; Cannon-Weiner Co. v. Boswell, 117 Mo. App. 474; Schneider v. Chew, 157 Mo. App. 354; Carman v. Harah, 182 Mo. App. 365. (4) The plaintiff sued on the contract of March 2, 1912. This contract was modified in. important respects by the contract of April 12, 1912. As plaintiff did not piead the moditied contract, he cannot recover in this action, even though, under a proper pleading’, he might be entitled to relief. Bagnell Timbér Co. v. Ev. Co., 180 Mo. 463; Veach v. Norman, 109 Mo. App. 387; Lanitz v. King, 93 Mo. '519; Carman v. Harah, 182 Mo. App. 365; Whit-lock v. Beach, 174 Mo. App. 42:8; Goller v. Oil Co., 179 Mo. App. 48. (5) Under the terms of the original contract, as modified by the agreement of April 12, 1912, the obligations of the Wagner Company terminated on the second day of October, 1912, unless at that time it elected to go forward with the contract, and made the payment of one thousand dollars, as provided in the 'modified contract. The Wagner Company did not elect to go forward; refused to pay the one thousand dollars, and notified plaintiff of its determination to withdraw from the contract, and that it would cause a reassignment of the patent to be made. Its obligation of the contract thereupon terminated. (6) In addition to the rights of withdrawal provided by the modified agreement of April 12, 1912, paragraph 8 of the original contract, also gave the Wagner Company the right to terminate the agreement at the expiration of two years. It so desires. Prior to that date it notified the plaintiff of its determination to abandon the contract, and continued notice of its abandonment of the contract was contained in its answer to a suit brought by the plaintiff for the one thousand dollars referred to in paragraph two of the original contract, and in the modified, agreement of April 12, 1912, which suit was pending and being contested by defendant at the expiration of the two-year period referred to in paragraph two of the original contract.

      Rippey & Kingsland for respondent.
    (1) The right of an inventor and patentee under the patent laws of the United States is to exclude others from making, using or selling the physical embodiments of the subject-matter of the invention, and this right is a property right vested by law in the inventor and patentee. Jewett v. Suspender Co., 100 Fed. 647; Victor Co. v. The Fair, 123 Fed. 424; Rubber Tire Co. v. Rubber Co., 154 Fed. 363; Blount Mfg*. Co. v. Yale & Towne Mfg. Co., 166 Fed. 558; Walker on Patents (5 Ed.), p. 185, sec. 151. (2) A license by an inventor or patentee granting a right to make, use and vend the invention is a privilege of value sufficient to constitute a consideration for a covenant upon the part of the licensee to pay a royalty or rental charge for the enjoyment of the privilege. Kelly v. Porter, 17 Fed. 519; Wilson v. Nentges, 26 Minn. 288; Sherman v. Champlain, 31 Vt. 162; Walker on Patents (5 Ed.), p. 366, sec. 307. (3) A license agreement executed and delivered is deemed to continue in force and the licensee is chargeable with the royalty or rental fee until the license is rescinded, and the license can only be rescinded in the manner and within the time prescribed by the contract. Ford v. Dyer, 148 Mo. 528; White v. Lee, 3 Fed. 222; Dare v. Boylston, 6 Fed. 493; McKey v. Lupton, 95 Fed. 291; Holmes v. McGrill, 108 Fed. 238; Chemical Co. v. Johnson, 203 Fed. 993; Hiner v. Aldrich, 255 Fed. 785. ,(4) The contract of March 2, 19121, is clear and unambiguous and it therefore follows that extrinsic evidence is inadmissible to contradict, add to, subtract from, or vary the terms of the contract. 9 Cyc. 590; 17 Cyc. 567; Davis v. Shafer, 50 Fed. 764. (5) The letter of April 12, 1912, did not constitute a modification of the contract of March 2,1912, and therefore was properly excluded from evidence for the reasons that (a) It does not on its face purport to be a modification; and (b) There was no consideration for a new and modified contract. 9 Cyc. 349; Ling’enfelder v. Brewing Co., 103 Mo. 578. (6) The question of interpretation and construction of the legal effect of the letters offered to show that the contract has been modified or rescinded should not be submitted to the jury. Interpretation and construction of the legal effect of written statements is a matter solely for the court. Ford v. Dyer, 148 Mo. 528; Wolff v. Campbell, 110 Mo. 120.
   WOODSON, J.

This suit has instituted by the plaintiff in the Circuit Court of the City of St. Louis against the defendant, to recover seven installments of $1500 each alleged to be due him as royalties under a lease of license dated March 2, 1912, executed by the plaintiff to defendant. The trial resulted in a judgment for the plaintiff for the amounts sued for, plus interest, which amounted to $1529.50 each. After moving-unsuccessfully for a new trial the defendant appealed the cause to this court.

The facts of the case are substantially as follows:

The plaintiff was an electrical engineer of high standing in his profession, and as such was connected with the Edison Electric Company, of New York, and the defendant was a Missouri corporation organized and existing under the laws of this State, and was engaged in the manufacture and sale of electric motor appliances in the City of St. Louis, The plaintiff was the sole inventor and patentee of a certain system of propulsion and battery-charging of electric vehicles, covered by United States patent issued to him, dated March 20, 1906, and numbered 815,360. On March the 2nd, 1912', the patentee, the plaintiff, and defendant entered into the following contract or license, whereby the former authorized the latter to manufacture and sell the said device, (Formal facts omitted): “This agreement made this 2d day of March, 1912, by and between Mr. Lamar Lyndon, a resident of New York City, party of the first part, hereinafter called ‘Lyndon,’ and the Wagner Electric Manufacturing Company, a corporation of Missouri, with principal offices in the City of St. Louis, Missouri, party of the second part, hereinafter called the ‘company.’

“Witnesseth: Whereas, said Lyndon is the inventor and owner of United States Letters-Patent No. 815,360 of March 20,1906, referring to system of propulsion and battery-charging of electric vehicles; and whereas the Company desires to undertake the manufacture of the system involved in said patent. Now, therefore, in consideration of the agreements hereinafter set forth, and the sum of $1 paid,by the Company to said Lyndon, receipt of which is hereby acknowledged, the parties agree as follows:

“1. The said Lyndon agrees that the Company may elect between the privilege of purchase outright of the said patent or operating thereunder an exclusive license on the following terms:
“(a) Purchase Outright. Within one year from the date that the Company offers for commercial sale an electric machine combining the functions of a driving motor for a vehicle and a convertor for charging the battery of said vehicle from the alternating current source of supply, the Company may acquire full ownership and, title to said patent upon the payments of twelve thousand dollars. If the Company does not exercise this privilege within said period of one year, the privilege of purchase shall continue indefinitely during the life of the said .patent subject to the stipulation that $2000 shall be added to the purchase price for each period of six months thereafter or fraction thereof until the total price of purchase shall have attained the total sum of $24,000, at which sum of $24,000 the price shall continue during the life of the patent. It is especially agreed that the purchase price shall be'reduced by the amount of any sums paid to said Lyndon in royalties or otherwise.
“(b) Royalties'. It is agreed that the Company is manufacturing at this time three standard sizes of direct current motors for driving electric vehicles, rated at 12, 14 and 16, respectively. Should the Company not elect to purchase outright, as provided in clause 'A’ above, it may operate as an exclusive licensee under said patent' hereinbefore referred to on the basis of a royalty of $4, $5 and $6 per machine, respectively, for machines hnilt under said patent and delivering as motors an output equivalent to the said 12, 14 and 16 frames. If the Company shall develop additional sizes of • equipment, it is agreed that a royalty per machine shall be arrived at for each machine fairly in proportion to the royalties stipulated for the frames mentioned in this paragraph.
“2. It is agreed that the company shall have an interval of approximately 30 days to investigate the validity of said Patent 815,360. At the end of that time the Company shall pay Lyndon the cash sum of $750. It is the spirit .of this paragraph that the Company will immediately and diligently make the investigation herein described, and if it does not receive it within the period of time prescribed an extension of 10 days is hereby agreed to, At the end of seven months from the date of this agreement, the Company shall pay an additional cash sum of $1000; both of said sums of $750 and $1000, respectively, are paid 'irrespective of commercial development and in the nature of a cash sum in consideration of this contract."
“3. It is mutually agreed that the Company shall not pay a minimum royalty during the first two years of this contract, but that for the third year under this agreement, assuming that the Company elects to operate under the exclusive licensed provisions in this contract, and for each year thereafter, the Company shall pay a minimum royalty of $3,000 per year. Said royalty to be paid in advance, half in January and the balance in July of each year, respectively.
“4. Should the Company elect to operate on the royalty plan, it is agreed that any royalties over and above the minimums provided for in paragraph 4, shall be paid to the said Lyndon semiannually, as soon as the Company can reasonably make up accounts therefor. It is understood and agreed that accounting, either for minimums or for royalties in excess of minimums, shall be made and the sums due the said Lyndon paid within 30 days from the time stipulated in this agrément.
“5. It is the spirit and intent of this contract that the said Patent 815,360, is controlling in the art for the the purposes covered by the claims thereof. If it should prove, in the course of time and the operations under this agreement that said patent is not controlling, then the Wagner Company may apply for a readjustment of the purchase price figures and royalties hereinbefore stipulated. And it is agreed that such purchase price and royalties shall be pro-rated to a proper measure of the protection secured by the patents. If there should be any difference between the parties hereto in respect to proper rerating, the question shall be arbitrated in the usual manner.
“6. The Wagner Company undertakes to assume the cost of any patent litigation arising in connection with said patent. The said Lyndon agrees to co-operate with the Company in any litigation offensive or defensive, in which the Company may become involved. There is nothing, however, in this contract which obligates the Company to engage in patent litigation unless it so elects.
“7. Improvements on this Patent. If the said Lyndon agrees to deliver to the Company by assignment in improvements he may make upon said patent 815,360 during .the life of said principal patent, the Company, however, agrees to pay all costs of taking out United States Letters Patent of said improvements; The said Lyndon agrees that with respect to improvement patents provided for under this agreement, that the Company may also have the right to said improvements in territory under control of the United States, as the Philippine Islands, etc., the Company assuming to pay the costs of securing protection in such territory.
“8. If, at the expiration of two years from the date of this agreement, the Company desires to terminate the agreement, all rights conveyed hereunder to the Company by Lyndon are to revert to Lyndon and the Company hereby agrees to make such re-assignment of said rights and patents; and further to furnish to said Lyndon a complete set of such drawings and designs as have been made by the Company for the construction of machine under said Patent No. 815,360.
“In witness whereof, the parties hereto have fixed their names this 2nd day of March, 1912.”

By paragraph three of the foregoing contract it was provided thát after two years from its date, if the Wagner Electric Manufacturing Company elects to operate under the exclusive license provisions of the contract it should pay to Lyndon a minimum royalty of $3,000 per year, payable in semi-annual installments in January and July of each year. By this suit plaintiff- seeks to recover seven such semi-annual installments alleged to have fallen due, commencing January 1, 1914, up to and including January 1, 1917, aggregating $10,500.

Plaintiff, to sustain the issues on his part, introduced in evidence, the contract above set out. He next introduced in evidence an assignment to the defendant of the patent referred to in the contract, which assignment concluded with the following paragraph:

“This assignment is, however, made subject to the terms and conditions of the ag-reements made and entered into between me, my heirs and assigns, and the said Wagner Electric Manufacturing Company, its successors and assigns. Date, March 2, 1912, and April 12, 1912.”

Plaintiff himself was the sole witness in his behalf. Upon the subject of whether or not the Wagner Electric Manufacturing Company had availed itself of the right given it by the contract to elect to purchase or to elect to operate as a licensee, plaintiff himself testified:

“Mr. Kingsland (continuing): Q. Did the company avail itself of the privilege of purchasing the patent outright, or did they elect to proceed under the .patent as a licensee?
“Mr. Houts: I object to that as immaterial.
“The Court: That is one of the things, whether they availed themselves of the privilege—
“Mr. Kangsland: I will confine the question; therefore, as to whether the defendant company availed themselves of the right to purchase outright.
“The Court (addressing wittness): You may answer that question.
‘To which ruling of the court, the defendant, by its counsél, then and there duly excepted, and still continues to except.
“The Witness: A. I never understood that it was the intention of the company to purchase outright.
“Mr. Houts: I object to that and move that it be stricken out.
“The Court: The objection is sustained, and the motion to strike out is sustained. (Addressing witness): You are asked whether or not they purchased this patent outright; you can answer by saying ‘Yes’ or ‘no.’ Did they ever purchase this patent outright from you? A. I have never been sure, your Honor; they had the option of doing two things.
“The Court: Q. Did you ever get $24,000 for this patent? A. Never, >they never purchased it.
“ ‘The Court: Q. They never purchased it? A. No.
“The Court: Q. What is the date of that assignment? A. April 12, 1912.”

On cross-examination the plaintiff testified- that his patent had been issued to him in 1906; that no complete machine had ever been manufactured under the patent; that after the contract with the Wagner Company no machine had ever been built to his knowledge.

For the defendant, Mr. W. A. Layman, president of the Wagner Electric Manufacturing Company, was the only witness. He testified that he himself dictated the contract of March 2, 1912, in Mr. Lyndon’s office. After the execution of this contract Mr., Layman returned to St. Louis and started the construction of an experimental machine. Prior to that date, so far as Mr. Layman, was aware, no machine had been built. Mr. Layman also started Ms patent attorney, E. E. Huffman, upon an investigation of the patent. Under paragraph two of the contract of March 2, 1912, the Wagner Company was granted a total of forty .days within which to investigate the validity of the patent. At the end of that time Mr. Layman .went to New York and told Mr. Lyndon that the investigation was incomplete and unsatisfactory. Up to that time no payments had been made to Mr. Lyndon.

The defendant offered to show by the witness Lay-' man what took place at the meeting between him and the plaintiff on April 12, 1912, but this the court excluded upon objection by the plaintiff. Defendant’s offer was as follows: “I wish to offer to prove that on the occasion referred to by the witness, the witness told the plaintiff that the validity of-the patent was not sustained by the, investigation which he had caused to be made by his patent attorneys, and that further time was desired for the purpose of making an investigation, and that be would not pay the $750 unless the contract was modified so as to permit the Wagner Electric Manufacturing Company to withdraw from the contract and terminate the contract by the time the next payment of a thousand dollars was to be paid under the terms of the original contract, and that thereupon the plaintiff agreed that it should be modified in the parts covered by a letter dated on that dated, drawn up at that time;” and the letter was as follows (Signatures omitted):

“Mr. Lamar Lyndon,

“60 Broadway,

“New York City.

“Dear Sir:—

“In accordance with the terms of our contract of March 2nd and. your supplementary letter of the same •date, pertaining to U. S. Patent No. 815,360, I hand you herewith accepted sight draft on our Company in the sum of $750. This covers the first payment provided for in Paragraph 2 of our agreement.

“You. will understand by this letter and this payment that the Wagner Company avails' itself of the licenses, privileges, etc., under U. S. Patent No. 815,360, contemplated and covered by our agreement of March 2. We are proceeding actively with the design and manufacture of an experimental equipment and expect to have the same on test in approximately sixty days. It was a part of our understanding in connection with the agreement of March 2nd, that it might be redrafted as to language, form, etc., by our attorneys, if they deem it desirable to do so.

“I am leaving for Washington to-day and if in the opinion of our counsel, Mr. Melville Church, such redrafting is desirable, I will present to you a redrawn form of agreement for your signature early during the coming week. Under the terms of the agreement of March 2d, next payment to you on account of this contract in the sum of one thousand dollars'will be due and payable October 2, 1912, providing the Wagner Company at that time desires to go forward with the agreement. If at that time, the Wagner Company should desire to elect to withdraw from further obligations under the contract, it is understood and agreed that they may do so, forfeiting, however the sum of the payment of seven hundred and fifty dollars, tendered to you with this letter.

“While in Washington, I will have Mr. Church draft a, brief license agreement for recording at Washington, as required under the terms of the United States Patent Law.”

The testimony offered to be introduced was excluded by the court over defendant’s objection. The court also excluded the letter of April 12, 1912. The defendant also offered to show bv the witness Layman that the defendant had at no time built or sold any machine. under the patent in question, and had at no time exercised any rights over the patent; and that the defendant had done nothing more than build an export-mental machine, which experimental machine was not a success. Objections to this offer of proof having been made, the court announced its ruling in the following language:

“The Court: That objection will be sustained, because the transaction to this day shows that the right of election is still open.”
“The defendant also offered to show that in October, 19.12, witness had a conversation with the plaintiff in which he told plaintiff that a machine constructed under the patent was not a commercial success, and that following this conversation defendant wrote a letter to the plaintiff, dated, November 9, 1912, as follows:
“We have decided to avail ourselves of the privilege accorded under our letter of April 12, 1912, and also in accordance with the conversations of Mr. Fynn and myself with you in New York City, October 18th, and terminate the agreement with you with respect to Patent No. 815,360. For this reason, your draft of $1,004.16 which would otherwise have constituted a second payment under the agreement, was ordered returned to you yesterday.
“I will ask your attorney to prepare a proper form of re-assignment to you of Patent No. 815,360 and will forward this to you in the near future.”

Plaintiff objected to the introduction of this letter and to the offer of proof, and the objection was sustained. Defendant also offered to show by the same witness why a re-assignment of the patent at that time had not been made to the ydaintiff. The plaintiff objected and the objection was sustained by the court. Mr, Layman testified that the Wagner Company had at no time elected either to operate under the license provisions of the contract or to purchase the patent. The defendant also offered in evidence its answer in a suit filed on the 13th day of .March, 1913, bv the plaintiff against the defendant, being Cause No. 83,059, in the Circuit Court of the City of St. Louis, in which answer the defendant notified the plaintiff that it had terminated and abandoned the contract, and was claiming no rights under it. To this offer of proof the plaintiff objected, and the court sustained the objection.

The defendant also offered to introduce in evidence a letter from the plaintiff to the defendant, dated March 6, 1912, as follows (Formal parts omitted):

“This is to request that -you will kindly have your attorneys expedite the search you propose to have made in connection with my patent on automobile motors, and to bring the matter to as speedy a conclusion US' possible.
“My reason for asking this, is that I have to-day received a favorable letter from the other parties who were considering the purchase of this patent. If you should decide not to consummate the agreement, I would like to sell it to them; on the other hand, I do not desire that they shall expend any time or money in an investigation if it would prove fruitless for them to do so. The terms of our agreement give us 40 days to conclude the matter, but in view of this communication to-day, I trust you will do everything’ in your power to reach your decision as early as possible.” This letter was also excluded upon plaintiff’s objection.

At the conclusion of the testimony the court gave a peremptory instruction directing the verdict for the plaintiff for the full amount sued for with interest.

I. Counsel for appellant first insists that the trial court erred in its ruling excluding the letter from Mr. Layman, the president of the company, to Mr. Lyndon, the patentee of the electric device mentioned, dated April 12, 1912, set out in the statement of the case. In oixr opinion that insistence is well grounded, and consequently the ruling of the circuit court in that regard was erroneous. That letter was written within the forty days within which the company had to accept or reject the contract dated March 2, 1912. In said letter of April 12, 1912, the company practically rejected the contract, and so stated, unless the plaintiff would extend the time to the defendant to accept or reject the contract until October 2,1912, the date when the $1000 mentioned in the contract, paragraph 2, was to become payable; and in which letter the company enclosed to plaintiff a draft for $750, the amount of the first payment due under the contract.

The plaintiff, in accepting the letter of April 12, 1912, and the draft for $750 therein enclosed, thereby, by implication, assented to the extension of the time in which the defendant might exercise its option to accept or decline to accept the contract of March 2, 1912. In our opinion there can be no reasonable doubt but that by agreement of the parties, the time to accept or reject the contract of March 2, 1912, was extended to October 2, 1912, which fact the defendant had the right to show by the offered evidence, which, by the court, was excluded upon the objection of the plaintiff; that was error.

But in the light of the remainder of the record bearing upon that question, we are unable to see in what possible way that error injured the defendant. The record further shows that the defendant did not accept or reject the contract within the time of extension before mentioned, to-wit, October 2, 1912, and did not until November 9, 1912, more than a month after the expiration of the time in which the defendant had to accept or reject it. So we are of the opinion that the error before mentioned was harmless and did the defendant no harm.

II. Counsel for defendant also contend that the trial court erred in excluding the letter of Mr. Layman, the president of the company, to Mr. Lyndon, the plaintiff, dated November 9, 1912, terminating theNeontract of March 2,1912.

In our opinion this contention is not well grounded, for the reason that, by paragraph 8 of the contract, it is provided that: “If, at the expiration of two years from the date of this agreement” it may so do, etc. While the said letter of November 9, 1912, undertakes and attempts to terminate the contract of March 2, 1912, yet that attempt was ineffectual for the reason that said attempt was made before the two years had expired, mentioned in said paragraph 8 of the contract, and therefore, the attempt was premature and not binding upon the plaintiff. There was no error in excluding said letter.

For the same reason the court excluded the letter of defendant to the plaintiff dated November 9, 1912, as before stated.

The court also properly excluded the answer of the defendant filed March 13, T912, in a suit instituted by plaintiff against the defendant to recover the $1000 mentioned in paragraph 2 of the contract. That answer was filed practically one year before the two years before mentioned, had expired, and therefore long prior to the time defendant had the right to -terminate the contract.

Finding no error in the record, the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    CITY OF KIRKWOOD ex rel. GEORGE BAPTISTE, Assignee of E. J. WELSCH, v. ALEXANDER H. HANDLAN, Appellant.
    Division One,
    December 2, 1920.
    1. GRADING STREET: Special Assessment: Semi-Annual Statements. A recital in the ordinance providing for the improvement of a designated street tkat “it is the judgment of the board of aider-men that the general revenue fund of the city is not in condition to warrant expenditure therefrom for bringing said street to established grade and that same shall be included in special assessment for'the improvement” is sufficient to include in the special tax bill, as a part of the cost of the improvement, the cost of bringing the street to established grade; and the board had authority to insert said declaration in the ordinance, although it had not spread upon its records prior thereto semi-annual statements of the city’s receipts and expenditures and its indebtedness, as required by the statute.

      ■¿. TAX BILL: Improving Private Property. If" one-half the strip sixty feet wide belonged to defendant, a ¡ special tax bill issued against his abutting property in payment for the improvements constructed thereon by the city is void.
    3. -: -: Estoppel: Common Law Dedication. Whether or not the attempt of the city to condemn a thirty-foot strip of defendant’s lot for street purposes was void for that notice by publication did not amount to due process of law, the defendant may be estopped to assert titl'e to said strip by a common law dedication thereof to city use; and such dedication may be established by evidence showing his intention to dedicate, acts done to carry out the intention, and an acceptance by the city; and the facts shown by the city in this case, whether it be considered an action at law or a suit in equity, being sufficient to show a common law dedication of said thirty-foot strip to the city, the tax bill levied against the remaining part of his lot for the grading, paving and guttering of the street of which said strip was a part, was not issued for the improvement of private property, and hence was not void.
    Appeal from St. Louis Circuit Court.—Hon. G. A. Wurdeman, Judge.
    Affirmed.

      H. A. Loevy for appellants.
    (1) The street improvement work for which the special tax bill sued on was issued was done on private property, therefore the tax bill is void. (2) The attempted statutory condemnation of appellant’s 30 feet of ground is unconstitutional and therefore null and void, because: (a) Appellant was not made a party by name to the condemnation case. ■ Wherefore he is not bound by same, (b) Section 9415 on which the city’s condemnation proceedings intended to condemn the western 30 feet of appellant’s lot for continuation of Dickson Street are based, is unconstitutional, being class legislation, (c) The method of notice provided for therein is not dne process of law: It discriminates) between residents of the city and other residents of the State, by providing for personal notice to the former by service by the city marshal and to the latter by publication as if they were non-residents of the State instead of citizens of the same State, (d) Publication to residents who cannot be found is not publication to non-residents and cannot be substituted, (e) It does not even describe his 30' feet of land nor even .the entire lot which might have attracted his attention if he had ever seen the so-called newspaper. (3) There was no common law dedication thereof, because there was no intent by appellant to dedicate, there was merely use by the public of an undefined roadway, straggling within a sixty foot limit like any other country road without bonds, partly across the western end of his tract, and partly on his neighbors. That did not create a common-law dedication. Carpenter v. St. Joseph, 263 Mo. 714. (a) Proof of intention by owner to wave his right is necessary, (b) A common-law dedication requires not only intent by owner but also acceptance by the city. . Mere user does not establish a street. (c) If the right of way depends on user, the width of the way is measured by its character, for an easement cannot be broader than the user. (4) The semi-annual statement required by statute showing the city’s general revenue and debts 1907-8-9 before special tax assessments can be levied, was not complied with. Hence the bill sued-on is void. Sec. 9413, R. S. 1909.

      Frank J. Quinn and Geo. O. Durham for respondent.
    (1) Appellant having failed to demur to the evidence or request a directed finding for defendant conceded that plaintiff had made a prima-facie case and cannot complain that the court did not of its own motion direct a finding, for defendant. 38 Cyc. 1540; Dickey v. Porter, 203 Mo. 20. (2) Letting tax-bill in without objection and failing to demur to the evidence conceded ownership and assignment and in effect conceded respondent’s ownership and right to maintain a suit for the tax-bill. Dickey v. Porter, 203 Mo. 1; Pratt v. Conway, 148 Mo. 299. (3) The evidence was sufficient to establish a common-law dedication and estoppel as against defendant; for: Appellant was claiming certain taxes alleged to have been illegally exacted of him and these taxes were not recoverable. Christy v. City, 20 Mo. 143; Roberts v. Latham, 134 Mo. 466; Pritchard v. Bank, 200 S. W. 666. And the return thereof by the City of Kirkwood was a valuable consideration which could be conditioned as the city saw fit. Under these conditions the 'city agreed to return the money in consideration of a dedication of Dickson Street. The money was paid and accepted. The terms of such payment and the condition with reference to the dedication was clearly brought home to appellant and he acquiesced therein, ordered his fence removed, had a new fence built on new line, and had property resurveyed and platted on new line. The whole constituted a dedication and estoppel to assert that the street was private property. Naylor v. Harrison-ville, 207 Mo. 341.
   GOODE, J.

This is an action on a special tax bill for $254.69 and interest, issued by the officials of the City of Kirkwood, Missouri, which is a city of the fourth class, to pay, in part, for improvements made on a portion of Dickson Street. The improvements included the grading of the street, putting in curbing and guttering, and spreading and rolling macadam and gravel. The work was done by E. J.-Welseh, to whom the tax bill in controversy was issued, but the action was instituted at the relation of George Baptiste, as the assignee of Weffich. The defendant resided in the City of St. Louis, but owned the lot in Kirkwood affected by the tax bill; a lot lying in Block, D, East Kirkwood, having a. frontage of 127.65 feet on the north side of Main Street and a death along the east side of Dickson Street (which is its west boundary), back to Harris Street on the north, of 566 feet and 6 inches. The improvements were made in 1910, and the bill in suit was issued August 21, 1911.

One of the points raised against the judgment for plaintiff is that the tax bill was not put in evidence, nor the assignment of it by Welsch to Baptiste proved. Two judgments by default had been taken against the defendant and set aside over the protest of the plaintiff, which filed a motion to have vacated the order to set aside the second default judgment. The court overruled this motion on the ground that until a term ended a court could set aside orders or judgments it had entered during the term, and among others, default entries, if it was thought a hearing on the merits should be granted’. In connection with a remark of the above purport, the court told the plaintiff’s attorney to offer the tax bill, and thereupon the attorney said: “I now offer in evidence the tar bill, marked ‘Plaintiff’s Exhibit A’;” and it was admitted upon proof of the signatures of the mayor and clerk of Kirkwood.

On the back of the bill was the following assignment:

“City of Kirkwood, Aug. 28, 1911. I hereby assign the within bill for value received to George Baptiste and he is authorized to sign my name to the receipt.
“E. J. Welsch.”

No proof was made of the genuineness of the signature of Welsch to the assignment, but it was proved by E. W. Handlan, a son of the defendant, and who attended to his father’s business when the father was away from. St. Louis, that a collector for Baptiste had demanded payment of the bill and, that after looking into some correspondence, he (E. W. Handlan) refused to pay it for the reason that he found a letter written to his father by the city clerk of Kirkwood, under date of March 25, 1907, and a notation on the letter made by his father, which showed there was a dispute between the city and his father about whether his father owned thirty feet of the width of the improved street or had dedicated it to the city; further, that he (E. W. Handlan) afterward had a conversation with Baptiste himself and refused to pay the bill for the same reason-—namely, that his father’s lot occupied thirty feet, or one-half the width of the property improved as Dickson Street where it bounded his lot,' and hence the improvement was' made on private property. These conversations and refusals to pay Baptiste occurred long subsequent to the issuance of the tax bill and conduced, along' with the written assignment on the back of it, to prove Baptiste was the owner and holder of it—a fact not really disputed; for the contention urged at the trial against the liability of the defendant related entirely to others matters.

Grading Street: Special Tax Bill. I. A minor defense is that part of the cost of bringing Dickson Street to the established grade was included in the tax bill, and that the board of aldermen could not impose this cost on the lots' abutting on the street unless, in the judgment of said' board, the general revenue fund of the city was not in a condition to warrant expenditure from it for bringing the street to grade. [R. S. 1899, sec. 5988; R. S. 1909, sec. 9410.] The ordinance, No. 877, approved May 16, 1910, providing for the work, declared: “ That it is the judgment and opinion of the board that the general revenue fund of' the city is not in condition to warrant expenditure therefrom for bringing street to established grade and that same shall be included in special assessment for the improvement.” Another section of the statutes required the board of aldermen to spread on their records semi-annually, in January and July, a detailed statement of the receipts and expenditures of the city and its indebtedness for the half year ending the preceding thirty-first of December and the thirtieth of June. [R. S. 1899, sec. 5912; R. S. 1909, sec. 9318.] No statement of the kind was recorded by the board of aldermen prior to the year 1911, and from this fact the counsel for defendant draws the conclusion that the board could not know whether or not the condition of the city treasury warranted paying for the grading out of it; hence, their declaration to that, effect in the ordinance for. the work, was a nullity and afforded no basis for assessing the abutting property to -pay for the grading. This proposition hardly" deserves discussion. Though no. statement of the city’s receipts and expenditures, or of the state of its finances was made matter of record, it does not follow that the aldermen were ignorant of those matters and, therefore, unable to form an opinon as to whether the city was able to pay for the grading; nor does it appear their declaration against the ability of the city to pay was false in fact. The argument is pressed to the point of insisting that the owners of property along the graded street had the right to be informed by recorded semiannual statements of the state of the city’s finances, and if they were not thus informed, the tax bills issued against their lots for grading were void. This reasoning is strained. Obviously the Legislature contemplated no consequence of the kind, but intended only to provide a means to keep the city officials and the citizens posted regarding how much money was collected for public purposes and how it was expended. The two cited sections of the statutes deal with different matters, and the recording of the city’s receipts and expenditures is not a condition precedent to the right of the board of aldermen to find the city’s finances are not in a'condition to enable the city to pay for street grading.

II. The principal defense was the alleged ownership by the defendant of the east one-half or thirty feet of the strip sixty feet wide which was improved. If defendant owned the east half of the street the improvements were made on private property and the tax bill issued against defendant is void. The position that defendant owned the strip is based upon the supposed invalidity of a proceeding to open, widen and extend Dickson Street from Jefferson Avenue to main Street, and for that purpose to condemn private property. This proceeding was commenced by an ordinance approved December 12, 1907, and the defendant was named as a party, the intention being to condemn a strip thirty feet wide off the west side of his lot and extending northward 566 feet and 6 inches, thereby bringing the strip into the street. The defendant contends he was not given notice by personal service on him, or any notice of the proceeding by a publication, which constituted due process of law within the requirements of the State and the National Constitutions; and in this connection - it is asserted that the section of the statutes providing for notice by publication in a newspaper to nonresidents of the county where such a proceeding to condemn land is instituted by a city of the fourth class, is unconstitutional. [R. S. 1909, sec. 9415.] The reasons assigned why the statute is unconstitutional are, that it provides for constructive service to a resident of the State, if he resides outside of the particular county, although he can be served personally with notice; that it is special legislation applicable only in favor of cities of the fourth class; that it denies property owners the equal protection of the laws, - and that it operates to take private property for public use without just compensation. Notice of the condemnation proceeding was'published in conformity to the statute in a Kirkwood newspaper;~ but the notice as published is said to have been inadequate because it was not addressed to the defendant as the owner of the property to be condemned, but was addressed generally “To non-residents of St. Louis County, Missouri, who are owners of property situated in the City of Kirkwood, Missouri, within a tract or a section hereinafter described.” The limits within which private property would be affected by the proposed opening of the street, were described in the notice, and the ordinance for the opening was referred to for a more particular description of the proposed extension and the property to be condemned.

We - have stated rather fully the constitutional objections of the defendant to the proceeding to condemn, thirty feet of his lot, because, they are earnestly pressed as controlling the case, but our conclusion is that the court was warranted by the evidence in holding that the defendant had become estopped to claim title to said thirty-foot strip and that the title had passed from him to the city by a common law dedication; so we will not pass on the points urged against the effect of the condemnation case, or the sufficiency of the published notice of it.

For several years prior to 1906 the defendant had contended the City of Kirkwood exacted from him unlawfully taxes on personal property outside said city and in the City of St. Louis, an independent political subdivision of the State, where defendant had his home. The amount in dispute between him and the City of Kirkwood on account of this alleged illegal taxation was about’ $78. In 1906 the city authorities wished to procure from defendant a dedication of said thirty-foot strip, in order to widen Dickson Street and the city clerk had several interviews with him on the subject, the outcome of them being that defendant agreed to dedicate the ground to the city if the city would refund the taxes it had wrongly collected, as defendant thought. The city paid back the taxes , in three' separate, warrants, and pursuant to authority in writing from defendant, moved his fence eastward thirty feet, thereby including in Dickson Street the strip in "controversy, and afterwards a sewer main was laid along the strip. Defendant agreed to convey the land to the city, but never did, offering at different times different excuses for not conveying it. Long afterward an employee of his removed the fence which had been set eastward thirty feet by the city, and built a new fence in place of it and on the same line, along the west side of defendant’s lot; a fact defendant must have known. The reason for subsequently condemning the strip was that the man who was to put in the sewer was afraid to enter on the land, as the record title was in the defendant. That the city used the strip for years as a public street is clear, nor was it shown that defendant challenged its right until payment of this tax bill was demanded. Those are the main facts going to show a dedication according to the evidence for the city; and they show an intention to dedicate, acts done to carry out the intention,, and acceptance by the city. [Bauman v. Boeckeler, 119 Mo. 189; Baker v. Squire, 77 Mo. App. 329.] The evidence for the defendant tends to prove the taxes were not refunded in consideration of his dedicating the strip to the city or upon any agreement by him to do so; that he made no agreement of the kind, but consistently refused to convey tot the city or otherwise confer on it the right to use the land in controversy for street purposes. The court below found the facts in .accordance with the evidence for the city, and held defendant was estopped to claim-title to the strip and that a common law dedication of it had been made by him. The relevant evidence supports this decision cogently enough to prevent us from reversing it, even if this case is in equity, as to which we do not decide.

It is contended the city merely paid back to defendant money that had been taken from him plainly without right; that the repayment was no consideration for a dedication of his ground. The facts about the alleged unlawful taxation were not brought out at the trial, further than to show there was a real controversy about the matter, in which the city acted in good faith and not arbitrarily. [Livingston v. Dugan, 20 Mo. 102; Rinehart v. Bills, 82 Mo. 534.]

It follows the improvements were made on a public street and not on defendant’s land, and, therefore, the judgment of the circuit court for the- full amount of the tax bill is affirmed.

All concur, except Woodson, J., absent.


author: SMALL, C.

text:
    HERMAN J. VOIGHTS, Trustee, and ROBERT E. BOOTH, Executor, of Estate of DIETRICH FADLER, v. B. L. HART et al., Appellants.
    Division One,
    December 2, 1920.
    1. TAX SALE: Different Tracts: One Sale. Whether the different tracts belonged to the same or different owners, the Charter of Kansas City of 1909 required a separate sale of each tract for the taxes due on it; and a deed whose recitals show that the city offered the full amount of the taxes due on two lots for both lots, and that both were stricken off to it at such lump sum, is void. While more than one tract may be included in the same deed, its recitals should show the amount of delinquent taxes against each lot, and that each was sold for the amount due on it alone, and not in solido for taxes due against all the tracts sold.
    2. —-: According to All Requirements of The Law: Inference. It cannot be inferred from a recital in the tax deed that the sale was made “in conformity with all the requirements of the law in such cases” that each lot was sold separately for the taxes due against it alone, since the charter requires an express or affirmative statement in the deed that each tract was sold separately.
    3. -: Non-Judicial Sales. In determining the validity of sales and deeds made by a sheriff under regular judicial proceedings a more liberal construction of the acts and proceedings of the officers is allowable than in non-judicial sales for taxes; for such non-judicial sales and the deeds made in pursuance thereto, to be valid, are required to strictly conform to the provisions of the law.
    4. -: -: Special Assessment Taxes. The form of the deed prescribed by the Charter of Kansas City of 1909 for use in tax sales must be modified so as to tell the truth and fit the facts in each particular case; and a tax deed is void which fails to state that the taxes for which the property was sold were special assessments levied by the park board and council for the maintenance and repair of parks, and boulevards, where the ordinance provided that such sales should be governed “as far as practicable” by the laws and ordinances governing sales for the non-payment of general taxes.
    5. -: Void Deed: Things to be Proved by Property Owner. If the tax deed was not “executed substantially as provided” in one section of the charter, another section requiring the person claiming adversely to the tax title to prove that the taxes were paid before sale, or that the property was not subject to taxation, or that it had been redeemed or tender made, does not apply, for the provisions of said other, section apply only when the tax deed is valid on its face.
    6. -: No General Taxes Due. A recital in the tax deed that the lots were sold for “taxes assessed upon said real property” must be held to mean general city taxes, and if all the general city taxes were paid when the property was sold, the deed containing such recital was void.
    7. -: Reimbursement: For Money Paid for Later Certificates. The Charter of Kansas City only authorizes recovery, by the person claiming under an invalid tax deed, of the amount of taxes, assessments, etc., “paid by the purchaser . . . after the date of the certificate of purchase,” and does not authorize recovery by the assignee of the certificate. of purchase of the amount he paid the city for taking- up certificates of purchase for subsequent years. But such claimant, in his suit to have the tax deed declared void, should pay into court, or to defendant personally, the amount, with twelve per cent interest, which he paid for his certificate of purchase and his tax deed.
    8. ■— -: Void Deed: Suit in Equity: Quieting Title. A suit in equity may be maintained to cancel a deed void on its face. Besides, a suit to quiet title, if the allegations of the petition are sufficient to bring the case within the provisions of Section 2535, Revised Statutes 1909, may be maintained by any person claiming title, whether in or out of possession, against any other person claiming title, whether under a deed void on its face or void in fact.
    9. --: -: Laches. If the owner did nothing to induce defendant to buy his property at the tax sale, his suit to have the sale and deed declared invalid is not barred by laches because of his failure to redeem within five years.
    Appeal from Jackson Circuit Court.— Hon. O. A. Lucas, Judge.
    Affirmed.

      Clarence Wofford, Bert S. Kimbrell and Walter W. Calvin for appellants.
    (1) The plaintiffs are not entitled to equitable relief under the allegations of the bill and under the evideuce introduced in support thereof; and, the court erred in overruling the demurrer of defendants offered at the conclusion of all the testimony in the case, (a) The failure to pay the taxes assessed against the property, the sale of the property for the non-payment thereof, the failure to pay the taxes after delinquency and before sale, the failure to redeem the property within six years and two months after the sale, and the consequent loss of the property, resulted solely from and was occasioned by the negligence and inattention of Dietrich Fadler. Betzler and Clark v. James, 227 Mo. 392; Thompson v. Lindsey, 242 Mo. 76; Cantwell v. Johnson, 236 Mo. 600; Jones v. Rush, 156 Mo. 374; Brown v. Chaney, 256 Mo. 226; Brown v. Fagan, 71 Mo. 568; Picot a^. Page,. 26 Mo. 413; Dunn v. McCoy, 150 Mo. 561; Bpoaaui v. County of Buena Vista, 95 U. S. 159; United States v. Ames, 99 U. S. 35; Grymes v. Sanders, 93 U. S. 61; Great Western Mfg. Co. v. Adams, 176 Fed. 327. (b) The failure or neglect of Dietrich Fadler to timely invoke and pursue the plain, adequate and complete remedies which the law afforded him for the protection of his property against taxation, for the protection against sale for taxes before and after-delinquency in the payment of taxes, and for the redemption of his property after sale within the time prescribed by law. Alnutt v. Leper, 48 Mo. 319; Perkins v. Railroad, 143 Mo. 513; Bank v. Staats, 155 Mo. 57; Cant-well v. Johnson, 236 Mo. 601; Coleman v. Hagev, 252 Mo. 131; Somerville v. Heilman, 210 Mo. 574; Keith v. Browning, 139 Mo. 196; Sturgeon v..Mudd, 190 Mo. 209'; Moss v. Braint, 216 Mo. 656. (c) Failure in both allegation and proof to sIioav that the property Avas not subject to taxation for the year 1911, that the taxes for the year 1911 were paid before the sale, or that the property was redeemed Irom the. sale or that an attempted redemption thereof was made before the execution and delivery of the tax deed. Charter of Kansas City, sec. 41, art. 5; Callanan v. Hurley, .93 U. S. 387; DeTreville v. Smalls, 38 U. S. 525; Keely v. Sanders,' 99 IT. S. 441; Straus v. Foxworth, 16 N. M. 442, 231 U. S. 162; Maxwell v. Page, 23 N. M. 356; Berkey v. Burcliard, 119 Midi. 103. (2) The finding and decree of the court are erroneous in that the court found, and the decree recites that the defendants were only entitled to recover of and from the plaintiffs the taxes paid at the tax sale on November 14, 1911, in the sum of $38.27,. with interest at the rate of twelve per cent-per annum from November 14, 1911; whereas, the court should have found, and the decree should have provided, that the defendants were' entitled, not only to the return of the amount, with penalties, paid at the tax sale, but also to the return of all taxes, state, county or municipal, general and special, paid by them, after the date of the certificates of purchase, together with penalties, and interest on said- amounts at the rate of twelve per cent per annum from the date of such payments; and, the court, therefore, erred in overruling defendants’ motion in arrest of judgment. Charter and Ordinances of Kansas City, 1909, see. 44, art. 5.

      Guthrie, Conrad & Durham and Hale Houts for respondent.
    (1) A tax deed conveys no title unless all statutory or charter requirements, both as to the manner of holding the sale and as to the steps to be taken thereafter, are strictly complied with and unless the deed recites such compliance. 37 Oyc. 1281; Meriwether v. Overly, 228 Mo. 235; Gregg v. Jesberg, 113 Mo. 39; Moore v. Harris, 91 Mo. 621; Abbot v. Doling, 49 Mo. 302. (2) If the sale or deed is invalid for any reason, even though the deed may be void on its face, the deed constitutes a cloud on the title which equity will remove by cancellation. Wilcox v. Phillips, 260 Mo. 690; Pocoke v. Peterson, 256 Mo. 518. (3) Plaintiff was not precluded from setting up title and obtaining relief prayed for by charter provisions purporting to validate tax deeds, (a) Neither statutory nor charter provisions can make recitals of tax deeds conclusive evidence’that the essential steps in the sale for taxés and conveyance thereunder have been taken. . Abbot v. Lindenbower, 42 Mo. 162; Roth v. Gabbert, 123 Mo. 29; State ex rel. v. Atkinson, 271 Mo. 42; Brown y. Hartford, 173 Mo. 189; Burden v. Taylor, 124 Mo. 21; Kinney v. Forsythe, 96 Mo. 419. (b) Moreover, the form provided by the charter, Article Y, Section 40, does not provide all recitals necessary in every case. It is inapplicable, in part at least, to cases in which property is bid off for the.city under Section 30'of said Article and certificate of purchase assigned by the city auditor as therein provided. Neither dogs the form provide the recitals for cases in which the sale was continued, and in which more than one tract is included in the deed. Skinner v. Williams, 85 Mo. 494; Sullivan v. Donnell, 90 Mo. 282; Bender v. Dungan, 99 Mo. 126. (4) Fadler was guilty of no laches barring this action. Williams v. Sand, 251 Mo. 147; Myers v. DeLisle, 259 Mo. 506; Fleming v. Wilson, 277 Mo. 579; Rutter v. Carothers, 223 Mo. -640. (5) The proceedings upon which the tax deed were based, the certificates of purchase and the deed itself were not held and made in conformity to law, and defendant received no title under the deed, (a) The certificates of purchase and the deed purported to assign and convey interest and title to the property in question on account of delinquency in payment of general taxes and sale under Article V of the charter and failed to recite that the taxes in question were special park taxes levied under Article XIII of the charter and failed to set up the resolution and ordinance pleaded by defendant and introduced in evidence levying the taxes and providing for the assessment and collection. The certificates and the deed therefore failed to recite the very basis of the whole proceedings and the essential steps necessary to passing of title, and are therefore invalid., (b) The property having been bid in by the city it was necessary that the deed show that the sale was eon-ducted and the property hid in in accordance with the provisions of Section 30, Article V of the charter, which constituted the only authority for the city to hid in the property. Sec. 30, Art. Y, Charter; Skinner v. Wildiarus, 85 Mo. 494; Sullivan v. Donnell, 90 Mo. 282; Bender v. Dungan, 99 Mo. 126. (c) The tax deed shows a sale of the two lots involved together and for one lump sum, whereas the certificates of purchase show a sale of the lots separately. Davis v. Evans, 174 Mo. 307. (d) The tax deed is void on its face for the reason it recites that the two lots were sold and bid off as a whole and for one lump sum. The charter, sec. 28, art. 5, provides that the tracts must be sold separately. Allen v. Buckley, 94 Mo. 160; Williams v. Cooperage Co., 100 Mo. App. 162; State ex rel. v. Richardson, 21 Mo. 420. (6) - The court allowed defendants all they were entitled to recover on account of the tax deeds. The defendants were made whole by the court’s decree. Secs. 35 and 36, Art. Y, Charter 1908. (7) Plaintiffs made sufficient tender to defendants of the money paid by defendant Hart on account of the tax deed and property in question. R. S. 1909, sec. 11508; K. C. v. Field, -270 Mo. 500; Yeaman v. Lepp, 167 Mo. 61; Williams v. Sands, 251 Mo. 167.
   SMALL, C.

Appeal from the Circuit Court of Jackson County. Petition filed January 30, 1918, by Dietrich Fadler, and he having died before the cause was tried, it was revived in the name of respondents, as trustee and executor under his will. The object of the petition is to cancel and set aside certain certificates of purchase and a city collector’s tax deed to Lots 236 and 237 in Block 17 in McGee’s Addition to Kansas City, owned by said Fadler. The lots were sold by the collector for non-payment of the park maintenance and boulevard assessments of the South Park District for the year 1911, and bid in by the city, and the certificates of purchase afterwards, on January 9, 1918, assigned to defendant, B. L. Hart, to whom a tax deed was issued on said date and recorded in the office of the Recorder of Deeds, January 10, 1918. There are a number of grounds- in the petition attacking the validity of the tax sale, and also the validity of the cértificates of purchase •and tax deed, as void on their face, as well as for matters not so appearing, which will be mentioned in the course of the opinion, as far as necessary for the disposition of the case.

The prayer of the position is that said certificates and tax deed be declared void and canceled to remove the same as a cloud on plaintiffs’ title, and that the court try and determine the title of plaintiffs and of defendants, and define and adjudge the title and interest of plaintiffs and defendants, and for general relief.

The answer of defendants admits the issue of .the certificates of purchase and tax deed, sets out the resolution of the park board and city council levying a special assessment for the purpose of maintaining, repairing, etc., parks, boulevards, etc., in the South Park District for the year 3911; and also an ordinance, approved April 25, 3913, providing for the payment and collection of said special assessment, which said ordinance provided “that the laws and ordinances governing the entering, extending, payment and collection, and the sale for non-payment of general taxes of the city shall, as far as practicable, govern the entering, extending and collection and the sale for nan-payment of the special assessment hereby levied; . . . and provided further, that if the sale of any land to enforce the collection of this assessment is contrary to the. public policy or laws of this State, then the amount, etc., may be collected by suit prescribed by Section 26, Article VIII of the City Charter.”

The answer further alleged the several steps taken bv the citv in relation to the sale and issue of the certificates of purchase and the tax deed and the recording thereof. The answer further alleged that after the assignment of said certificates and the issue of the tax deed, plaintiff, Fadler, paid no.taxes on said property, but the defendant, .B. L. Hart, after obtaining his tax deed, paid all the city taxes on said property for the years 1913 to 1916, which, including said park and boulevard maintenance tax for the year 1911, amounted to $1425. That after November 14,1911, said Fadler never paid nor offered to pay any taxes, and never offered to redeem said property from tax sale, except by the institution of this suit on January 30-, 1918. That by reason of the'premises, said Fadler was guilty of laches and is barred and estopped from asserting any right to said property or redeeming the same, and that said defendant, by virtue of such tax sale and his tax ' deed, is, the absolute owner of said lot. Wherefore, the defendants pray that the plaintiffs’ petition and bill be dismissed.

The reply traversed the new matter of the answer.

At the trial, there was no question raised as to the validity of the special assessment for park and boulevard taxes for the year 1911 for which the property was sold. The certificates of purchase were introduced in evidence; both dated January 5, 1912, and recorded May 2, 1912; one showing that said Lot 236 was sold for $20.40 to Kansas City, and the other, Lot 237, sold to said city for $17.87. These certificates were in precisely the same language, except one related to Lot 236 and the other to Lot 237. Neither recited that the property was sold for the park and boulevard assessment of 191.1, or special assessments of any kind, but followed the form-for certificates of purchase of land sold for general city taxes. The treasurer or collector’s deed which defendant, B. L. Hart, received and under which he claims title, omitting the acknowledgment, was as follows. >

“Know all men by these presents, that, whereas, the following described real property, viz.: Lot 236 Block 17 McGee’s Add. Lot 237 Block 17 McGee’s Add. situate in Kansas City, in the County of Jackson, and State of Missouri, was subject to taxation for the year 1911; and whereas, the. taxes assessed upon the said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and, whereas, the City Treasurer of said Kansas City, did on the 14th day of November, 1911, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Monday of November, 1911, the first day on which the annual tax sale began and continued to and including said first mentioned day, expose to public sale at the office of the City Treasurer in Kansas City aforesaid, between the hours of ten o ’clock in the forenoon and five o ’clock in the afternoon, in conformity with all the requirements of the law in such case made and provided, the real property above described, for the payment of taxes penalty and costs then due and unpaid upon said real property. And whereas, at the place aforesaid Kansas City of the County of Jackson and State of Missouri having offered to pay the sum of $38.27 being the whole amount of taxes, penalty and costs then due and remaining unpaid on said real property for Lot 2;36, Block 17, McGee’s Add. Lot 237, Block 17, McGee’s Add. and the payment of- said sum having been by it made to said, city treasurer, the said property was stricken off to it at that price. And, whereas, the said Kansas City did, on the 9th day of January, 1918, duly assign the certificate of purchase of the property as aforesaid and all its right, title and interest to and in said real property to B. L. Hart of the County of Jackson and State of Missouri; and whereas five years have elapsed since the first day on which the annual tax sale began and the said property has not been redeemed therefrom, as provided by law; and, whereas, the City Treasurer of Kansas City aforesaid; did, at least four months before the expiration of the time limited for redeeming said real property, publish a notice as required by the law in such case made and provided, that unless said real property was redeemed on or before the day limited therefor, it would be conveyed to the purchaser or his heirs or assigns.

“Now, therefore, I, Harry E. Barker, City Treasurer of Kansas City, county and state aforesaid, for and in consideration of the sura of $39.27 taxes, penalty and costs due on said real property for the year 1911 to the City Treasurer of said Kansas City, paid as aforesaid, and by virtue of the law in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said B. L. Hart, his heirs and assigns the real property last hereinbefore described, to have and to hold unto him the said B. L. Hart, his heirs and assigns forever.

“Subject however to all rights of redemption provided by law.

“In witness whereof, I, Harry E.. Barker, City Treasurer of Kansas City, as aforesaid, have hereunto subscribed my name and affixed the corporate seal of Kansas City, this 9th day of January, 1918.

“ (Rev. $50) Harry E. Barker,

“(L. S. City Treasurer-of Kansas City.”

Ernest Forbes, for plaintiffs, testified: That he was redemption clerk in the City Auditor’s Office; that the property was sold for said park and boulevard assessment ; that there were no records in that office showing that the city paid anything for either of the lots in question at the tax sale involved, and that the city never pays the bid it makes for property at tax sales; it simply bids in the property and later acquires the amount of the taxes by assignment of the certificates of redemp-. tion. '

Plaintiffs’ testimony further showed that Dietrich Fadler, the owner of the lots, died in February, 1918. That at his death he was 90 or 91 years old. That he was a bachelor. That he wa's neve^ away from the property for four or five years before his death. That he did not pay the taxes, because a young lawyer told him that the law under which the taxes were levied he thought was unconstitutional, and it was. unjust, and, therefore, he did not think he ought to pay them.

Plaintiffs’ counsel, in open cou,rt, renewed their offer to reimburse the defendant, B. L. Hart, on account of outlays,, the same as in the petition.

It was admitted by defendants that the property was worth $50,000 at all times mentioned in the petition.

At the close of plaintiffs’ testimony, defendants offered and the court refused a declaration to the effect that the plaintiffs were not entitled to recover.

The defendants introduced the resolution of the park board and resolution and ordinance of the city relating to the levy and collection of the park and boulevard maintenance taxes for 19Í1, which were as stated in the answefi.

Defendants further showed that on January 9, 1916, they procured certificates of purchase by assignment from the city on account of the sale of said property for •taxes for the years 1913-1916, inclusive.

In rebuttal, the plaintiffs introduced in evidence the certificates of the city auditor, showing the payment of the sum of $1437.96 by them to said city in redemption of said lots from the tax sales thereof for the years 1913, ’14, ’15, ’16, ’17. Plaintiffs also showed that they .had paid into court on October 22, 1918, the sum of $100, as a special deposit in the case.

The court found the issues for the plaintiffs and rendered judgment as prayed in the petition, and ordered that out of the money deposited in court, the defendant, B. L. Hart, be paid $85, being the amount for which the tax sale was made, including interest thereon at the rate of twelve per cent per annum from November 14, 1911, to the date of the decree.

Being unsuccessful in moving for a new trial and in arrest of judgment, the defendants appealed to this court. *

I. (a) The first charge in the petition which we shall consider, is that the tax deed is void on its face, because it shows' both lots were sold as one tract for the lump sum of $38.27 and not sold separately for the taxes delinquent upon each, as required by the charter of the city. The deed recites that: “Whereas, Kansas City . . . having offered to pay the sum of $38.27, being* the whole amount of taxes, penalty and costs then due and remaining unpaid on said real property for Lot 236, Block 17, McGee’s Add. Lot 237, Block 17, McGee’s Add., and the payment of said sum having been by it made to said city treasurer, the said property was stricken off to it at that price.” Ik is plain enough that this is a clear recital that the city offered a lump sum of $38.27, the full amount of the taxes due on both lots for both lots, and both lots were stricken off to it at such lump sum. The form of the tax deed is prescribed by the present freeholders’ Charter of Kansas City of 1909 (Sec. 40, Art. V)., It is in precisely the same words as the form prescribed by the special legislative Charter of Kansas City of 1875 (Laws 1875, p. 237). The deed in this case follows the form literally, but the form literally was intended for a deed conveying but a single tract, and shows that the amount of the taxes on this single tract, and for which it is sold, shall be set out in the deed. While more than one tract may be included in the same deed (Sec. 39, Art. V, Charter of Kansas City, 1909) yet, in that event, the recitals of the deed should show the amount of the taxes delinquent on each tract, and that each tract was sold for the amount delinquent on it alone and not in solido for taxes delinquent on it and other property also, as in this case.

In Sullivan v. Donnell, 90 Mo. 282, Black, J., construing the form of the tax deed provided by the Charter of 1875, said, while the form might be applied to cases where the property was bid off by the city, “the tax deed will vary the form so as to state facts truly.”

In Bender v. Dungan, 99 Mo. 126, where the statute, Section 224 (Laws of 1872, p. 130), provided that a deed to real estate forfeited to the State for taxes should be made by the collector as near as may be in the form prescribed in the act, it was held that the form cf deeds for such forfeited lands would “have to be added to, modified and altered in order to be adjusted to and embrace the requirements peculiar to section 224, under which deeds for forfeited lands are authorized.”

In Allen v. Buckley, 94 Mo. 158, the court said, I. c. 160: “The deed shows upon its face that it includes six different tracts of land assessed to different persons, with the amount of the tax and judgment rendered against each tract. While it shows this, it fails to show that these tracts were each sold separately for the tax adjudged against it, and no other inference can be drawn from the deed than that all the tracts were sold together for the aggregate amount of tax, interest, cost, and penalty, against all the tracts. While it is provided by our statute that a purchaser may have as many, tracts as he buys at a-tax sale included in one deed, it also provides that each tract is only chargeable with the tax assessed against it. When more than one tract is included in the deed it should show, either expressly or by necessary implication, the sale of each tract separately for its own tax. For the reason, if for no other, that the deed does not show this, the court was justified in holding it to be invalid.”

The same rule obtains in this case. Whether the different tracts belonged to the same or different owners, the charter required a sale of each lot separately for the taxes due on it. [Kansas City Charter, 1909, sec. 28, art. V.]

In State ex rel. v. Richardson, 21 Mo. 420, l. c. 421, the court said: The law never contemplated that delinquent lands should be sold in the lump. A deed showing that lands were sold in this manner, could not be contradicted, and a purchaser would not be at liberty to prove that they were sold in the manner required by law.”

(b) Learned counsel for appellants, however, deny that, properly construed, the tax deed here in question on its face shows that both lots were sold for a lump sum, because said deed recites that the sale was made “in conformity with all the requirements, of the law in such cases,” from which recital it may be inferred at each lot was sold separately for the, taxes due. on it only. This general recital was also required to be made by the form, and the inference from it that each lot was sold only for the taxes due on it is not sufficient. What the charter requires is an express or affirmative statement, to that effect on the face of the deed. The inference from such general recital cannot be substituted for the specific recital on that subject required by the Charter. [Hopkins v. Scott; 86 Mo. 140; Sullivan v. Donnell, 90 Mo. l. c, 282-3.]

(c) Learned counsel for appellants cite the following cases in which it was held that a recital in a sheriff’s deed for land sold under judgment and execution for taxes under the Back Tax Act, stating that, several tracts were sold in solido for a lump sum, does not render such deed void: Shelton v. Franklin, 224 Mo. 360 ; Rector v. Hartt, 8 Mo. 461; Bouldin v. Ewart, 63 Mo. 330; Wellshear v. Kelley, 69 Mo. 343; and other cases in this State. They were all cases of sales and deeds made by the sheriff under regular judicial proceedings, where a much more liberal construction of the acts and proceedings of officers is allowable than in a non-judicial sale for taxes, as in this case. Such sales and deeds, as we have before us, are always required to strictly conform to the provisions of the law in order to be of auy validity. [Abbott v. Doling, 49 Mo. 302; Moore v. Harris, 91 Mo. l. c. 621; Gregg v. Jesberg, 113 Mo. l. c. 39; Meriwether v. Overly, 228 Mo.l. c. 235, and other cases cited supra.]

We hold, therefore, that, the tax deed in suit is void on its face, for the reason that it shows the two lots were bid in by and struck off to the City for the lumn sum of $38.27, and does not, show that each lot was bid in and sold separately for the amount of the taxes and costs due on it.

II. The ’ above authorities, holding that the statutory form of'the deed must be modified, so as to tell the truth and fit the facts in the particular case, also sustain the charge in the petition that said tax deed was void, because it failed to state that the taxes for which the property was sold were special assessments lev:>-ed by the park board and the city council for the maintenahee and repair of parks and boulevards. The charter itself does not authorize the collector to sell any property for such delinquent park and boulevard assessments, but does provide (Sec. 33, Art. XIII, Kansas City Charter, 1909): “Every such assessment shall be made and collected as provided by ordinance of the Common Council, and the Common Council shall have the power to provide penalties for the failure to pay such assessment when due and may provide for the 'sale of the property assessed to satisfy such assessment. ’ ’ In pursuance of this power, the council did pass the ordinance set up in the answer and quoted in our statement of the ease, providing “that the laws and ordinances governing . . . the sale for non-payment of general taxes of the city shall as far as practicable govern the . . . sale for non-payment of the special assessment hereby levied.”. Said ordinance further provided that if .such sale to enforce such assessment “should be against the public policy or laws of the State,” it should be collected by suit. Assuming that the ordinance was valid and sufficient to authorize a collector’s sale and bidding in by the city, as in case of general city taxes (which is not necessary to decide), we hold, that the certificates of purchase and tax deed issued in pursuance of any such sale, in order to conform to the charter, as far as practicable, as required by said ordinance authorizing such sale, should,, at least, state that such taxes were park and boulevard assessments and that the lots were sold in payment of the same by authority of the said ordinance. The tax deed in this case and the certificates of purchase, containing no such recitals, are, in our opinion, null and void.

III. But it is strenuously argued by appellants’ learned counsel that the Charter of Kansas City, 1909, Sec. 41, Art. Y. provides that in any suit concerning the rights of the grantee in a tax deed “executed substantially as provided in the preceding section,” the person claiming adversely to the tax 'title must prove that the taxes were paid before sale, or that the property was not subject to taxation, or that it had been redeemed or tender made, in accordance with the’ charter by the person, having the right of redemption. These provisions of said Section 41 have no application in this case, because, as we have seen, the tax deed was not “executed substantially as provided in the preceding section,” to-wit, Section 40. [Sullivan v. Donnell, 90 Mo. l. c. 282.] In other words, we hold that the provisions of Section 41, above mentioned, apply only to cases where the tax deed is valid on its face, which is not the case here.

IV. Furthermore, the recitals as to the kind of taxes for which the property was sold in. said tax deed, being in the form required by the Charter of 1909, which form was taken from the Charter of 1875, which authorized no sales by the city treasurer under any circumstances except for delinquent general city taxes, must be construed-to refer to general city taxes, which .the evidence shows were all paid in this case, and for which the property was not sold. For that reason also, said tax deed was void.

V. It is also contended by defendants that under said Section 41, the defendants should have had judgment for the amount they paid the city in taking up the certificates of purchase for the years 1913t to 1916, inclusive. This position is not well taken, because said Section 41 only authorizes the recovery by the person claiming under an invalid tax deed of the amount of all taxes, assessments, etc., “paid by the puchaser, his heirs or assigns, after the date of the certificate of purchase.” Here, the defendants paid no taxes or assessments after the date of the certificates of purchase under which the tax deed was issued, but simply purchased certificates of purchase from the city for the years 1913 and 1916, inclusive. It was shown in evidence, that the plaintiffs redeemed, from all such sales by paying the proper amount to the city auditor (which included interest at-12 per cent per annum) for defendants, as the holder of such certificates, as required by the city charter. The plaintiffs did pay into court the amount with interest’, which the defendant, B. L. Hart, paid out for his certificate of purchase under the sale of 1911 and for his tax deed, which was all plaintiffs were obligated to pay into court or to the defendant, B. L. Hart, personally by said Section 41 of the Charter.

VII. It is also urged that a bill in equity cannot be maintained if the said tax deed is void upon its face, as, in such event, the plaintiffs have an adequate remedy at law. The bill shows that the plaintiffs were in possession; therefore, they had no remedy by ejectment. It is well settled, however, that equity will cancel a tax deed, although it is void on its face as a cloud on the title. [Wilcox v. Phillips, 260 Mo. 690; Pocoke v. Peterson, 256 Mo. 518.] Besides, the allegations of the petition, and the prayer, for determination of title, brings this case within the provisions of Section 2535, Revised Statutes 1909, concerning suits to quiet title, which may be instituted by any person claiming title, whether in possession or not, against any other person claiming title, whether under a deed void on its face, or void, in fact, for any reason. We rule this point against appellants.

VIII. The defense of laches set up by defendants is also untenable. Dietrich Fadler did nothing to induce the defendant, B- L. Hart, to buy the property at ^1G ^ax sa^e’ to pay taxes and redeem from the sale within five years, subjected Mm to the loss of his property, if the tax sale and deed were valid, but not, if they were void, as in this case. If laches could be imputed to the property owner for merely failing* to redeem or allowing* his property to be sold for taxes, he would lose the title to Ms property, whether such tax sales and deeds were void or valid, which it would hardly be contended is the law. The return of the principal with 12 per cent interest per annum on all sums paid out for taxes by the holder of the invalid tax deed, which the city charter required, and which was done by plaintiffs, is all that a court of conscience could require in such cases.

There are other reasons urged by the learned counsel for plaintiffs, in their bill and brief, why said tax sale and deed were void, which, however, it is not necessary for us to determine.

The judgment of the lower court was right and is affirmed.

Brown and Ragland, CC., concur.

PER CURIAM:—The foregoing opinion by Small, C., is adopted as the opinion of the court.

All of the judges concur.