author: WOODSON, J.

text:
    ST. LOUIS MALLEABLE CASTING COMPANY, Appellants, v. GEORGE C. PRENDERGAST CONSTRUCTION COMPANY.
    Division One,
    June 6, 1921.
    1. SPECIAL TAX BILL: Avoidance. A special tax bill, being prima-facie evidence of its validity, if not overturned by ample evidence of fraud, cannot be cancelled.
    2. —-: Sewer District: Notice of Establishment. Under the old Charter of St. Louis, notice to the property owners of the establishment of a sewer district is not necessary to the validity of special tax bills issued to pay for the sewer.
    3. -: -: Judicial Beview. The action of the municipal authorities in the establishment of a sewér district, if in harmony with charter requirements, is, in the absence of fraud, not subject to review by the courts.
    4. -■: ■ — -■: Fraud. A complaint of fraud in fixing the boundaries of a sewer district comes too late if first made after the work is completed.
    5. -: -: Estoppel. Silent acquiescence with knowledge of the improvement being made, especially when accompanied by acceptance of its benefits, estops the property owner from denying the validity of a tax bill issued in payment for the construction of the sewer.
    6. -: -: Omitting Other Natural Drainage Areas. The municipal authorities of St. Louis are the sole judges of the dimensions of a contemplated sewer district; and charges of a property owner, in his suit to cancel tax bills, that two large tracts of land in the same natural basin in which the sewer district was laid out were not included within its boundaries and that thereby the amount of the cost taxed 'against his property was disproportionately large and unjust and larger than it would have been if said tracts had been included, if the evidence shows that private sewers, connected with a public sewer and sufficient to drain them of foul and storm water, had been constructed thereon or are being constructed, will not support a finding that the municipal authorities were guilty of fraud in omitting such tracts, especially where there is no evidence connecting the defendant contractor with the alleged fraud.
    Appeal from St. Louis City Circuit Court. — -Hem. Wilson A. Taylor, Judge.
    Appirmed.

      Muench, Walther & Muench for appellant.
    (1) The charter of the City of St. Louis makes uo provision for notice or hearing in the establishment of taxing districts for sewers, and no notice was given or hearing had upon the question of benefits in the establishment of the taxing district for Baden District Sewer No. 2. Therefore, the assessment is invalid, being violative of the due process clause of the Federal Constitution. Hamilton on Special Assessments, sec. 145; McQuillin on Municipal Corporations, sec. 2074; Page & Jones on Taxation by Assessment, sec. 729; Farnham on Water & Water Rights, sec. 232, p. 1091; Baumann v. Ross, 167 U. S. 549; Embres v. Road Disk, 240 U. S. 242, 257 Mo. 593;. Land Co. v. Kansas City, 241 U. S. 419; Land & Stock Co. v. Miller, 170 Mo. 240; McGhee v. Walsh, 249 Mo. 284. (a) The hearing provided for by Section 3 of Article XXII of the charter relates to the character of the improvement and not to the defining of the taxing district. It takes place after the taxing district has been finally established by ordinance. Collier Est. v. Paving & Supply Co., 180 Mo. 390. (b) A local assessment may be made by the Legislature itself without notice or hearing, but when the power is delegated to a municipal body it cannot be exercised without notice to property owners and an opportunity to be heard at some stage of the proceeding. McGehee on Due Process of Law, p. 248. (c) Even if it be conceded that a Legislature may delegate such power to a municipal legislative hoard, and that such board may exercise the power without notice and opportunity to be heard, yet the Board of Aldermen, in passing: the ordinance establishing the taxing district in question, was not acting legislatively. State ex rel. v. Gates, 190 Mo. 540; McKenna v. St. Louis, 6 Mo! App. 320; Parks v. Boston, 8 Pick. (Mass.) 218; State v. Mayer, 34 N. J. L. 445; 2 McQuillin on Mun. Corp. sec. 704. Under the charter the Board of Public Service makes the inquiry into the facts and drafts a bill for the establishment of the taxing district, based upon its finding of facts, and recommends to the Board of Aldermen the adoption of the assessment. The Board of Public Service is a purely administrative board. Kansas City v. Ward, 134 Mo. 172. The Board of Aldermen is given no power under the charter to amend the bill and must either reject or pass it as it comes from the Board of Public'Service. It cannot originate an ordinance of this character. American Tobacco,Co. v. City, 247 Mo. 374; State ex rel. Bejt v. St. Louis, 161 Mo. 371. The taxing district being-in fact established by the Board of Public Service, the propeidy owners must be given an opportunity to be heard. The charter making- no provision for such hearing and none having been accorded, the ordinance in question is invalid, (d) When the scheme of distribution of an improvement tax is palpably arbitrary and constitutes a plain abuse, it is violative of the Fourteenth Amendment to the Federal Constitution. St. Louis Land Co. v. Kansas City, 241 U. S. 429. (2) Special taxation for local improvements rests on the principle of benefits. ¡McQuillin on Municipal Corps., sec 2018; Construction Co. v. Haeussler, 201 Mo. 400; Gast Realty Co. v. Schneider Granite Co., 240 U. S. 58; Norwood v. Baker, 172 U. S. 269; Page & Jones on Taxation, sees. 549 and 651. (a) Taxes for local benefits should be distributed equally upon all standing in like relations. McQuillin on Municipal Corps., sec. 2021, p. 4339; Cast Realty Co. v. Schneider, 240 U. S. 58; Hanscon v. Omaha, 11 Neb. 37; Masters v. Portland, 24 Ore. 161. (b) The omission to assess the property of the Calvary Cemetery and the “Kuhs” property, both of which are in the natural drainage area, invalidates the assessment. ■ 28 Cyc. 1162; Page & Jones on Taxation, sec. 556, p. 905, sec. 553, p. 897; Masters v. Portland, 24 Ore. 161; Scranton v. Levers, 9 Pa. Dist. 176; Clay v. Grand Rapids, 60 Mich. 451; Brewing Co. v. Trustees, 15 N. Y. App. Div. 139; Stover v. Springfield, 167 Mo. App. 328; Kansas City v. Bascom, 147 Mo. 301 ; Dyer v. Harrison, 63 Cal. 447; Helm v. Wirtz, 35 Ind. App. 131; Farnham on Water and Water Rights (1904 Ed.) sec. 172, p. 921. (3) The evidence establishes that the drain was made twenty per cent larger than the needs of the taxation district required, so as to take care of the surface water from Calvary Cemetery. There is no principle of taxation which justifies the throwing of the cost of this larger sewer upon the property in the district as defined by the ordinance, and the exclusion from the taxing district of the cemetery property for the benefit of which the size of the sewer was increased. Farnham on Water & Water Rights, see. 173-d, p. 932; Harrisburg v. Cummings, 6 Pa. Dist. 437; Park Ave. Sewers, 169 Pa. St. 433; Bayden v. Village, 65 Vt. 504. (4) The agreement to exempt the Kuhs property, in consideration of the granting of the right-of-way for the district sewer and the altering of the Kuhs private sewer system, is invalid. So, also, is the arrangement between the Calvary Cemetery and the city for the exemption of the cemetery property. McQuillin on Municipal Corps., sec. 2063; 28 Cyc. 1134; St. Louis v. Meier, 77 Mo. 13; Bank v. Clark, 252 Mo. 20; Vrana v. St. Louis, 164 Mo. 146; St.- Joseph v. Crowther, 142 Mo. 155; McKaine v. Independence, 175 Mo. App. 332; Rider v. Parker-Washington Co., 144 Mo. App. 677; Radkliífe v. Duncan, 130 Mo. App. 695; Brewing Co. v. Trustees, 15 N. Y. App. Div. 146. (5) The ordinance establishing the taxing district in question is arbitrary and results in favoritism to the owners of the properties within the natural drainage area excluded and in oppression upon those whose properties lie within the taxing district. The courts will de-. clare such an unreasonable ordinance void. Dillon on Municipal Corps. (5 Ed.) sec. 592, p. 920; McQuillin on Municipal Corps., sec. 2052, p. 4401; Page & Jones on Taxation, sec. 555; 28 Cyc. 1122; Corrigan v. Gage, 68 Mo. 541; City v. Hyde, 196 Mo. 498; Masters v. City of Portland, 24 Ore. 161; Hanscon v. Omaha, 11 Neb. 44. (6) The fact that Calvary Cemetery and the Kuhs property had private drains is not sufficient to exempt said property from assessment for the district sewer constructed by the city. Page & Jones, see. 563, p. 920; City of St. Joseph to use of Gibson v. Owen, 110 Mo. 445. Calvary Cemetery and the Kuhs property are so located that they may be served by the district sewer. They are therefore benefited by the district sewer. Page & Jones on Taxation, sec. 563, p. 917.

      Rodgers <& Koerner for respondent.
    (1) The special tax bill is prima-facie evidence of its validity; and the testimony in the case is not sufficient to overturn it. (2) No notice, or hearing, was necessary in the establishment of the taxing district for the sewer. Meier v. St. Louis, 180 Mo. 409; Hernán v. Allen, 156 Mo. '551; Hernán v. Schulte, 166 Mo. 417; Embree v. K. C. Road Dist., 240 U. S. 250; Work v. City of Lock-port, 28 Hun. 9; 2 Page & Jones on Taxation by Assessment, secs. 728, 743; Williams v. Eggleston, 170 U. S. 304. The hearing had before the Board of Public Service upon due notice, g’ave full opportunity to property holders to be heard as to, and complain of, any matter which might make it inequitable to construct a sewer as projected in the district as established. (3) The action of the municipal authorities in establishing the sewer district, in the absence of fraud, is conclusive and not subject to review by the courts. Hernán v. Allen, 156 Mo. 534; McGhee v. Walsh, 249 Mo. 266. (a) There is no evidence of fraud in this case. On the contrary, there is an express disclaimer thereof, (b) Even had there been fraud, the contractor was no party to it, hence could not be prejudiced by it. A. complaint of this sort comes too late after the work is done. Land & Imp. Co. v. St. Louis, 257 Mo. 291; Bank v. Woesten, 147 Mo. 467. (4) The municipal authorities of the City of St. Louis are sole judges of the dimensions of contemplated sewers. Heman v. Allen, 156 Mo. 534. (5) Silent acquiescence with knowledge of the improvement, especially when aecompained by acceptance of its benefits, estops the property owner from denying validity of the tax bill. Paving Co. v. Flemming, 251 Mo. 210; Heman v..Ring, 85 Mo. App. 231; Walsh v. Bank, 139 Mo. App. 64Í; Smith, v. Carlow, 114 Mich. 67; Fitzhugh v. Bay City, 109 Mich. 581; Atkinson v. Newton, 169 Mass. 240; Board of Commissioners v. Plotner, 149 Ind. 116; Patterson y. Baumer, 43 Iowa, 477; Wright v. Davidson, 181 U. S. 377.
   WOODSON, J.

The plaintiff brought this suit in the Circuit Court of the City of St. Louis against the defendant to cancel and set aside a certain tax-bill issued against the property of the former for the construction of Baden Sewer District No. Two, amounting to $9,168.86. The trial resulted in a judgment for the defendant and the plaintiff duly appealed the cause to this court.

The petition charged substantially the following facts:

The petition of the plaintiff alleged that the Board of Aldermen of the City of St. Louis, upon the recommendation of the Board of Public Service of the city, adopted an ordinance, approved March 22, 1915, establishing a sewer district to be known as “Baden Sewer District No. Two”, which ordinance is set out in full in the petition. ' That thereafter the Board of Aldermen enacted another ordinance, prepared and recommended by the Board of Public Service, for the construction of the sewer in said district, which ordinance was approved July 21,1915, and under which the Board of Public Service was authorized to let a contract for the construction work. The ordinance further proved for the acceptance by the City of St. Louis of sewers conveyed to the city by the St. Louis Terminal Eailway Company by deeds, and that part of the sewer so conveyed should be incorporated in the system to be constructed under authority of the ordinance. The ordinance further provided that when the sewers were fully completed, the Board of Public Service should cause the entire cost and expense thereof to be computed and should levy and assess such cost and expense as a special tax, in accordance with the requirements of the charter of the city, and cause to be issued a special tax bill against each lot or parcel of ground liable, in the manner provided by the charter. That the defendant was awarded the contract for the construction of the sewer, and that on December 22, 1916, the City of St. Louis issued and delivered to the defendant special tax bills for the aggregate amount of $'65,744.67, being the entire cost for the construction of'said sewer, as calculated by the Board of Public Service and as agreed upon in the contract between the city and the defendant, amongst which bills was one issued against the property of plaintiff for $9,168.86. That plaintiff is the owner in fee of the tract of land described in said tax bill, against which said tax bill was issued, which tract contains approximately 320,210 square feet.

That the said assessment and charge in said tax bill is excessive, unlawful and void, for the reason that the said taxing district established by ordinance as aforesaid does not include large areas of land which were in the drainage area of said sewer, and which properties stand in the same relative position as plaintiff’s with respect to the said sewer, and derive, and are so situated as to be capable of deriving, the same amount of benefit from said sewer as the property of plaintiff. That a large tract of land immediately north of plaintiff’s property, hereinafter referred to as the “Kuhs” property and containing approximately the same area as plaintiff’s property, and which property is so situated with respect to the said sewer as to receive as great or greater benefit therefrom than the said property of plaintiff, was omitted from the said taxing district and exempted from taxation for any portion of the cost of the construction of said sewer. That a large tract of land fronting on the west side of Broadway and belonging to the Calvary Cemetery Association, and which property consists of a number of acres, and is in the natural drainage district of said sewer, which property is in the same relative position with respect to said sewer as the property of plaintiff, and derives as great benefit therefrom, was also omitted from said taxing district and exempted from the payment of any portion of the cost of said sewer. That by reason of the omission and exemption of the said large tracts of land from their just share of the said tax to pay the cost of construction of said sewer, an unreasonable and excessive proportion of the said tax has been assessed against the said property of plaintiff.

That the ordinances aforesaid, the provisions of the charter of the City of St. Louis purporting to authorize the Board of Aldermen to establish a s^wer district designating lands of private owners to be specially taxed to pay the entire cost of said sewer, violate the Fourteenth Article of the Amendments to the Constitution of the United States, in that they determine that said lands within the district prescribed by said ordinances would be benefited by said sewer and should be and wore especially assessed therefor, as well as the apportionment of said taxes between the several lots or parcels of land £tnd their respective owners within said district, without any hearing being accorded to the owners of said lands upon such determination, thereby denying plaintiff due process of law; tlmt by the establishment of said sewer district and the imposition of said entire cost of the said district server upon the property therein, as orlained by tbe ordinance aforesaid, and by tbe exclusion ¡)f the land as aforesaid from the taxation of the cost of said sewer, although such lands so excluded will be drained by said sewer and share equally with the property of plaintiff and other properties in said defined district in the benefits resulting- from the construction of the sewer, plaintiff has been denied due process of law, the equal protection of the law guaranteed to plaintiff by the said Fourteenth Article of the Amendments to the Constitution of the United States.

That the establishment of said sewer district and the levying of said tax by the ordinance aforesaid was and is arbitrary, unjust, oppressive and fraudulent, and by the Said Board of Public Service known to be so at the time of its recommendation of said ordinance to said Board of Aldermen, and that the said Board of Public Service then knew that the aforesaid additional parcels of land would be drained by the said sewer and derive all of the benefits and advantages therefrom, which every other property within the said defined sewer district can or will derive therefrom, and notwithstanding which the ordinances so recommended by the said Board of Public Service to said Board of Aldermen and by the latter enacted, imposed the whole cost of said sewer upon the lots within the said sewer district as defined by the said ordinance, and no part of said cost upon such additional lands. That the said Board of Public Service in recommending to the Board of Aldermen the said ordinance establishing the said district acted oppressively, arbitrarily and fraudulently in this: That prior to the establishment of the said sewer district, for the construction of said district sewer, plaintiff had, under permit of the then Board of Public Improvements of said city, the predecessor of said Board of Public Service, constructed a sewer system upon its said land, which private system was laid upon plaintiff’s said property, along a private right-of-way, to a public sewer known as “Baden Public Sewer,” with which sewer said private sewer of plaintiff was connected. That plaintiff had constructed the said sewer under permit as aforesaid at great cost and expense, and said sewer was adequate for taking care of the sewage and surface water from plaintiff’s said land. That plaintiff’s said property has no dwelling buildings upon it, the only buildings erected upon its said land being foundry, factory and office buildings occupied and used by it for the transaction of its business. That the tract of land hereinabove mentioned as the “Kuhs” property, and which has been excluded from said taxing district as aforesaid, is and has been improved for a number of years by a large number of tenement and flat buildings occupied by more than forty families. That prior to the establishment of said taxing district for the construction of said district sewer, a short line of private sewer, for carrying off foul water, had been laid in said “Kuhs” property and was connected with plaintiff’s private sewer above mentioned, and the sewage from said “Kuhs” property thus drained through said private sewer into said Baden Public Sewer. That in the. planning of said district sewer it was provided for the laying of a line of said sewer along and upon a strip seven and one-half feet in width, being the western seven and one-half feet of said “Kuhs” property, extending southwardly from the south line of Christian Avenue, and it was further provided in said plan for the laying of a line of said district sewer upon and along a strip being the western ten feet in width of plaintiff’s property hereinabove described and extending southwardly from the south line of Antelope Street to the north line of Thatcher Avenue, a distance of four hundred and ninety-five feet, more or less. That the City of St. Louis obtained from the plaintiff, without any consideration moving to plaintiff therefor, a deed conveying the easement of right-of-way for said district sewer along and upon the said strip ten feet in width. That said city also obtained a conveyance from the owners of the said “Kuhs” property, for the easement or right-of-way for said district sewer in said strip seven and one-half feet in width. That the deeds for the said sewer right-of-way recite a nominal consideration of one dollar. That notwithstanding the deed to the sewer right-of-way along said “Kuhs” property purported to he a conveyance in consideration of one dollar, the Sewer Commissioner of the City of St. Louis, who is also a member of the Board of Public Service did, without authority and unlawfully, promise the owners of said “Kuhs” property that because of the making of'said deed to said right-of-way the taxing district for the said Baden District Sewer No. Two should be so laid out and said district so constructed that said “Kuhs” property, although receiving all of the benefits from said district sewer and being with respect to said sewer precisely in the same position as plaintiff’s property, should be left out of said taxing district and exempted from the payment of any portion of the cost for the construction of said sewer. That the value of the sewer right-of-way upon said strip of the “Kuhs” property was trifling as compared with the proportion of the cost of said sewer properly and equitably taxable ag-ainst said property. That the said Sewer Commissioner, in planning and laying out the taxing district for said district sewer, acted arbitrarily with a view of favoring the owners of the said “Kuhs” property and' did so plan said district as to leave out of said taxing-district all of the said “Kuhs” property except a strip being the western seven feet and six inches in width and a strip fifty feet in width off the eastern part of said land, extending from the center line of Baden Public Sewer to the southern boundary line of said “Kuhs” property. That the said two strips of said “Kuhs” property were left in the taxing district for the fraudulent purpose of permitting the connection of said “Kuhs” property with said district sewer, owing to the fact that the said strips are immediately adjacent to the pipes of said district sewer, thus malting it possible for the remainder of said “Kuhs” tract, eliminated from said taxing district as aforesaid, to obtain all the benefits and advantages of said district sewer. That the said Sewer Commissioner did report to the said Board of Public Improvements and to the committee of said board having’ under consideration the establishment of said district, his said unlawful arrangement with the owners of said “Kuhs” property, to so define said district as to eliminate substantially all of said “Kuhs” property, and did fully inform the other members of said board, and of the said committee of said board, that the said proposed elimination of said property from the taxing district was probably unlawful and might invalidate the tax bills issued for the construction of said sewer. That notwithstanding the said report of said Sewer Commissioner, and notwithstanding the members of said Board of Public Improvements did fully understand that the plan for said taxing district as submitted by the Sewer Commissioner was unjust, inequitable and invalid, the said Board of Public Improvements, as a committee of the whole, did arbitrarily, fraudulently and oppressively, and in a spirit of favoritism towards the owners of said “Kuhs” property, recommend the establishment of said taxing district with the elimination of substantially all of said-“Kuhs” property as aforesaid, and the said Board of Public Improvements did then, at the regular meeting of said board, adopt the recommendation of the committee of the whole of said board, and did prepare and recommend to the Board of Aldermen of the said City of St. Loui§, the ordinance establishing said taxing district, arbitrarily and fraudulently leaving out of the taxing district as defined in the ordinance so recommended to the Board of Aldermen the said “Kuhs” property, with the exception of the two small strips hereinbefore specified. That - the Board of Aldermen of said City of St. Louis did, without any hearing being accorded the property owners in said proposed taxing district, and without any independent investigation of the facts, but acting solely upon the recommendation of said Board of Public Service as hereinbefore set forth, enact the said ordinances as aforesaid.

Similar allegations were made regarding another tract of land, to-wit: the Calvary Cemetery Association, containing twenty-three acres, and similarly situated. The petition further charged that plaintiff’s property is improved by its office and foundry buildings, and the Kuhs property is improved with a number of two-story brick flat and residence buildings, housing approximately 100 families.

In 1903 plaintiff obtained from Kuhs a deed for a sewer right-of-way along the- eastern part of the Kuhs tract, extending from the northeast corner of plaintiff’s property to Gingrass Creek. Plaintiff, at about the same time, under permit from the City of St. Louis, constructed a private twelve-inch sewer running from its property over the right-of-way acquired from Kuhs. This sewer emptied into Gingrass Creek. Subsequently, in 1907, under permit from the city, plaintiff replaced the. twelve-inch sewer by a twenty-four-inch sewer. This private sewer not only carried off the foul water, but also the surface water, from plaintiff’s premises, and the evidence is undisputed that this private system of plaintiff was and would continue to be entirely adequate for the plaintiff’s property.

The Kuhs property also has a private sewer system. Under permit from the city there was laid along the eastern part of the Kuhs property a fifteen-inch sewer paralleling the plaintiff’s sewer. The records of the sewer departemnt do not show that a permit was ever granted to Kuhs to lay any other private pipe.

Several.years before the district sewer in question was built, a public or main sewer, known as Baden Public Sewer, was constructed in the bed of Gingrass Creek., The plaintiff’s twenty-four-inch pipe and the fifteen-inch Kuhs pipe were both connected with the p-ubilc sewer, and both of these private sewers are still in use.- Mr. E. L. Kuhs, for defendant, testified that there were two other pipes upon the Kuhs property, which also formerly emptied into Gingrass Creek, and are not connected with Baden Public Sewer, but the records of the Sewer Department do not show those connections.

Under the Charter of the City of St. Louis, Article XXII, Section 3, before the Board of Public Service shall recommend an ordinance for the construction of a sewer to be paid by special assessments, the Board of Aldermen, on recommendation of the Board of Public Service, shall establish or shall have established a sewer district, or joint-sewer distinct, against the property in which it is proposed to assess benefits. The charter establishes an arbitrary rule for the assessment of all property within the district so established, according to area. The Board of Aldermen has no power under the charter to amend such an ordinance emanating from the Board of Public Service, but must either adopt the ordinance as recommended, or reject it. The charter makes no provision for notice to the property owners nor for a hearing before the Board of Public Service or the Board of Aldermen upon the question of benefits; that is, upon the question of what property shall be included within the benefit district, and there was not, according to the testimony, any such notice or hearing in the matter of the establishing of the taxing district for Baden District Sewer No. Two.

The matter of the establishment of this taxing district was pending before the Board of Public Improvements for a considerable period of time before the bill defining the district was recommended by the board to the Board of Aldermen. According to the testimony, the matter was up for consideration before the Board of Public Improvements, sitting as a committee of the whole, on November 18, 1913. According to the stenographer’s transcript of the proceedings before the board bn that date, Mr. J. L. TIornsby, as attorney for the Calvary Cemetery, appeared and presented a request that the property of the Cemetery Association be excluded from the taxing district and thus exempted from contributing anything to the cost of the sewer.

Mr. Hornsby stated to the board that Mr. Moreno, then Sewer Commissioner, had told him that twenty-three acres of the cemetery property sloped towards Broadway and that the surface water would necessarily drain into the proposed sewer; and that Mr. Moreno estimated that the Cemetery Association’s share of the cost of the proposed district sewer would be about $12,000. In the discussion before the board on that occasion, Mr. Moreno said: “I understand the attitude of Mr. Hornsby, and I think it is not unreasonable; at the same time we have to consider this; if we cut out that twenty-two acres and assess the entire cost of those sewers against, this district that is populated, some of the property owners may contest the tax bills, as it is evident that the sewers do have to be made twenty per cent larger than they .otherwise would have to be built, to take care of that property outside of the district, and I am afraid we might not be able to get a contractor to bid on the work.”

And again, in the course of the same discussion, in ■answer to a question of one of the other commissioners as to whether there had ever been a case of exemption of that sort, Mr. Moreno replied: “I don’t recall any since I have been here. We try to Jay the districts out so they will be on a basis perfectly fair to all the property owners within the district, and for that reason we could not very well exclude territory of this kind.”

Mr. Kinsey, the president of the board, expressed a similar view. He said: “The statement of the Sewer Commissioner, in case your cemetery was exempt, that is to say, in such an event, if the district was so laid out as to exclude the cemetery, the city would have to pay the portion ordinarily assessed against the cemetery, and in that way, in imposing upon the property owners in the district that additional burden, it makes it difficult to exclude this cemetery in the present case.”

Mr. Moreno thereupon suggested: “The only thing I sec we can do is to move the .line over arbitrarily a portion of the distance, if the hoard thought that could he done. Still, that is establishing a precedent that might get us into trouble later.-' ’ To which Mr. Talbert, another commissioner, replied: “It seems to me you would have to follow the physical fact or lay yourselves open to future trouble.”

The question of the elimination of the Kuhs property from the taxing district came befóre the board sitting as a committee of the whole, at a meeting held February 6, 1914. At this meeting Mr. Moreno, Sewer Commissioner, called attention to the fact that the Kuhs property had been left out of the plan for the district submitted by him. He stated in explanation that the property was not subdivided and was drained by two private sewers connecting with the public sewer. Then he continued: ‘ ‘ Another thing: in order to properly drain the district we are compelled to have a right-of-way, from Kuhs’s property in which to lay some of our sewers. He g'ave that right-of-way with the understanding that if we accepted it and laid out the district his property would be left out, on the ground that he had started it and it did not drain through any of the district sewers. If we decide to put his property in the district, we will have to give him back his right-of-way and enter condemnation proceedings to acquire it. In order that these people may have relief we have to go ahead with the district and include this property in Calvary Cemetery, regardless of their protests, and it is an open question as to whether or not we should leave this other out or put it in. . . . It occurs to me that if we do leave this property out some of these other gentlemen who own vacant property might contest the tax bills.”

On May 8, 1914, the question of the elimination of Calvary Cemetery and the Kuhs property again came up for consideration by the board. Mr. Hooke, who had succeeded Mr. Moreno as Sewer Commissioner, brought up the matter. He reported that something like twenty-three acres in Calvary Cemetery drained through the territory, and that he had estimated that the cemetery should pay something like $12,000' as its proportion of the cost of the sewer. He recommended that if the Cemetery Association could take care of its own drainage he thought it would be fair to leave them out of the district, and that then the size of the district sewer could be cut. He also estimated that the private drain which the Cemetery Association would have to construct would probably cost $4,500. As to the Kuhs property, being asked by Commissioner Wall as to what he had done regarding that, he answered: “Nothing, for two reasons; the first is he gave ns all of those rights-of-way (I was sitting in there with the Sewer Commissioner myself) on conditions that his sewers that wore in there would be accepted, and if his sewers are accepted, there is no reason why we should put him in the district. ... I do not see anything wrong with it, especially in view of the fact if we don’t do that wc must pass an ordinance and give him back those rights-of-way which were obtained under a misrepresentation.”

The records of the board do not show that there was any further discussion of the matter by the board. The only subsequent record entry in connection with the establishment of the sewer district is the entry of November 17, 3914, in the proceedings of the board that an ordinance establishing the taxing district was recommended to the Board of Aldermen.

Prior to the time when the question of the extent of .the taxing district was brought by the Sewer Commissioner before the board sitting as a committee of the whole, the Sewer Commissioner had obtained a deed to a right-of-way seven and one-half feet wide and approximately 247 feet in length off the western side of the Kuhs property. The deed is dated May 9, 1913, and recites a nominal consideration of one dollar. This is the right-of-way deed referred to by the Sewer Commissioner in the discussion of the question of the exclusion of the Kuhs property from the sewer taxing district. The testimony shows that no money consideration moved from the city to the Kuhs Realty Company for this easement.

The plaintiff had also given the city a right-of-way for this district sewer, of a width of ten feet, and along the entire western line of its property, a distance of 495 feet. There was no actual consideration of whatever kind for this conveyance. The deed was made about the same time as the Kuhs deed.

The ordinance for the establishment of the district, as recommended by the Board of Public Service, was passed by the Board of Aldermen, the ordinance being approved by the Mayor on March 22, 1915. The district laid out by the ordinance does not include any part of Calvary Cemetery and excludes all of the Kuhs property except a strip of seven and one-half feet in width off the entire west line, and a strip fifty feet in width off the east side extending from the southern boundary line of the Kuhs property to the public sewer, a distance of approximately 230 feet; 247.04 feet of the strip seven feet and six inches wide embraces the sewer right-of-way deeded by the Kuhs Company to the city, but the remainder of the seven and one-half-foot strip included in the district, and having a length of approximately 2151 feet, although not given for or used as a right-of-way for the district sewer, is yet included in the district.

According to the testimony of Mr. Dodds, engineer and surveyor, a witness for the plaintiff, the area of Calvary Cemetery within the natural drainage district is twenty-three and a fraction acres, and the area of the Kuhs property within the natural drainage area and not included in the taxing district is 317,398 square feet. As shown by the plat of the taxing district, and as testified to by Mr. Osthaus, the Special Tax Assessor, the total area of the district as laid out is 2,296,039 square feet. Adding that to the area of the portion of Calvary Cemetery and the area of the Kuhs property, within the natural drainage district, 3,634,919 square feet, so that only 63.17 per cent of the area of the natural drainage district has been included in the taxing district.

The size of the district sewer is greater than is necessary for the draining of the area taxed. This was testified to by Mr. Dodds, witness for the plaintiff, who stated that the sewers in the district were larger than it is customary to build sewers for the draining of territory of the extent included in the taxing district and similarly situated with respect to the fall of the land. It is true that Mr. Horner, the City Engineer, testified that the sewers in the district were no larger than were reasonably necessary for the needs of the territory included in the taxing district, but he admitted on cross-examination that in calculating the sizes of the sewers the highest percentages of the various factors entering into the calculation were used. He further admitted upon cross-examination that the plans for the construction of the sewers, including the sizes of the pipes, had been prepared before the discussion as to the size of the taxing district by the Board of Public Improvement, and that no change in the sizes of the sewers in the district was made after the board determined to exclude Calvary Cemetery and the Kuhs property. In this connection we call attention to the statement of Mr. Moreno at the meeting of the board held on November 18, 1913: “It is evident-that the sewers do have to be made 20 per cent larger than they otherwise would have to be built to take care of that property outside of the district.” The plans, according to Mr. Horner, were not changed after that meeting, and it is evident that the sewers, as construct’ed, are therefore 20 per cent larger than the requirements of the territory taxed called for.

Mr. Hornsby, attorney for the Calvary Cemetery, and who testified in behalf of defendant, .stated that the cemetery property had been left out of the taxing district by the Board of Public Improvements in consideration of the agreement of the Cemetery Association to construct a drain along the Broadway front of the cemetery property of sufficient size to take care of the surface water from that portion of the cemetery within the natural drainage area of the district, the private drain to be connected with Báden Public Sewer. The drain along Broadway, from Calvary Avenue to the center gate of the cemetery, was to be an open concrete ditch, and from there northwardly an underground pipe. It was Mr. Hornsby’s recollection that this arrangement between the Cemetery Association and the city officials was evidenced by letters.

Notwithstanding the contract between the Cemetery Association and the city, the Cemetery Association did not begin the construction of its private drain until October, 1916, at which time the district sewer was practically completed, and did not finish the construction of the private sewer until March, 1917.

Mr. Horner, City Engineer, who testified in behalf of defendant, stated that the chief consideration for the leaving out of the Kuhs property was the fact that it had a private system, which, with proper inlets, would he sufficient to take care of both the foul and surface water of the Kuhs land. The testimony of Mr. Hooke, Sewer Commissioner, was to the same effect. Mr. Horner admitted that the inlets which the Sewer Commissioner directed should he made for the purpose of taking care of the surface water of the Kuhs property, as a condition to the accepting of the private system as a part of the sewer system of the city, have not yet been made. Mr. Kuhs, also a witness for the defendant, likewise admitted that fact, but stated that he was making preparations for having the inlets constructed. Both Mr. Moreno and Mr. Hooke stated that they had no independent recollection of the negotiations with Mr. Kuhs, and therefore could neither confirm nor deny the correctness of their representations to the Board of Public Improvements at the meetings held on February 6th and May 8th, 1914, that the deed for the right-of-way for the district sewer from the Kuhs Realty Company had been given on condition that the Kuhs property would not be included in the taxing district, and that if the Kuhs property were included in the taxing district the right-of-way deed would have to be returned and condemnation proceedings instituted.

None of the members of the Board of Public Improvements who testified, nor Mr. Horner, the Chief Engineer, could give any satisfactory explanation of why the Kuhs property was left out of the taxing district while the property of the plaintiff, which admittedly had an adequate private system, which is still draining directly into the Baden Public Sewer, was included. It was suggested by one of these witnesses for defendant that there was some difference between the two parcels of land, in that the Kuhs property immediately adjoined the public sewer, but when it was pointed out to this witness that the plaintiff had a right-of-way extending from its property to the public sewer, which right-of-way had been deeded to it by Kuhs and that therefore plaintiff’s property, to that extent, also abutted upon the public sewer, it was admitted that this was no substantial ground for differentiating between the two properties in the matter of the taxation for the building of the district sewer. In this connection attention is called to the fact that the plaintiff’s private sewer system, built under permits from the city, cost, according to the evidence, in excess of $4,500.

The court took the case under advisement and on December 30, 1918, at the, December Term, 1918, entered a finding and judgment for defendant and dismissed plaintiff’s bill.

The defendant’s evidence tended to show:

The sewer, for proportionate part of cost of which appellant’s ground was assessed, had been fully completed when this suit was brought, and appellant had connected its said premises with this sewer and was in actual enjoyment of the benefits theory. The evideuce fails to show any act of commission or omission on the part of the contractor. The appellant does not question the utility of the sewer. Yet, without offering to pay any part of its cost, appellant comes into a court of equity and asks that the entire assessment against its property be canceled.

The Charter of the City of St. Louis required the establishment by ordinance, on recommendation of the Board of Public Service, of a taxing district preliminary to the adoption of an ordinance providing for construction of sewers within the district, and also required a public hearing, on notice, as a condition precedent to such recommendation. Prior to tentatively laying out this sewer district, members of the Board of Public Service visited the locality- in person and went over the ground. In addition to this, this Board had before it information of the local conditions gathered by its assistants, and, as one of the members exressed it in his testimony, was mindful of its duty to include in the assessment district all the property that would be benefited by the sewer.

The testimony shows that two tracts of ground within the same natural basin in which this district sewer was laid, were omitted from this sewer district.

One of these tracts, about 23 acres, is a portion of Calvary Cemetery. A representative of the Cemetery Association appeared before the Board of Public Improvements, then existing under the old charter of the City of St. Louis, and being the predecessor of the Board of Public Service, at a discussion of the then proposed sewer and taxing district therefor, and suggested that since the cemetery had no foul water to drain, it- might with propriety be left out of the district. At this meeting-some talk was had about the cemetery constructing open drains that would carry the storm water from its ground into a near-by public sewer. The cemetery property was omitted from the sewer district; and afterwards the said proposed open drains were constructed by the Cemetery Association entirely at its own expense, with the result that nothing from the cemetery enters the district sewer.

The other, of said two tracts omitted from the district was a portion of the “Kuhs” property, as it is called throughout the case, improved with dwelling* houses accommodating about 100 families, and all of which was perfectly drained by a private sewer emptying into an adjoining public sewer.

Appellant’s ground, all within the present sewer district and less in area than either of the portions of the cemetery or “Kuhs” tracts omitted from the district, was at the time of fixing the sewer district occupied as a manufacturing plant, consisting of foundry, warehouse and office buildings. It had a private sewer system connecting with the public sewer some distance away from it; but appellant was one of the petitioners for this district sewer, and as soon as possible connected its plant with it for -purposes of additional drainage.

The Cemetery Association, Kuhs, and appellant all had at times prior to the fixing of the present sewer district given the city rights-of-way for sewer purposes.

The members of the Board of Public Service, which recommended the present district, testifying in this case, all denied any bargain whereby portions of the cemetery or Kuhs properties were to be, or were, omitted from this taxing district. And the following facts were also established by such testimony, viz:

In the judgment of the Board of Public Service, the portions of the cemetery and Kuhs properties omitted from such district were both adequately drained at private expense into the public sewer and were not benefitted by the district sewer; and appellant’s property was not adequately drained by its private sewer system connected with the public sewer and was henefitted by the district sewer, which it immediately made use of.

That the dimensions of district sewer were not originally designed to drain any portion of the cemetery or Kuhs properties, and that the district sewer as designed and laid was exactly adapted to the present district, according to the best expert opinion on the subject.

After the evidence was all in and the cause was under advisement, the defendant (respondent here) petitioned the court for leave to amend its answer. The answer, as it stood, was a general denial, and defendant sought to amend by adding thereto a plea of estoppel, based on allegations to conform to the evidence, to the effect that the plaintiff (appellant here), prior to the letting of the contract, knew that the City of St. Louis was about to let a contract for construction of the sewer in question and was familiar with the beginning and progress of the work of constructing said sewer, and knew that its (appellant’s) said ground would he thereby benefited and assessed therefor, and knew the extent of such assessment, and applied for permission to, and did, connect its premises therewith, but gave no notice that it would contest payment of its special tax bill, and silently stood by and permitted the work to be done and received the benefits thereof; and that plaintiff, by petitioning for said sewer, encouraged the city to form said sewer district and caused sewers to be constructed therein.

The trial court found in favor of defendant, without ruling on its said petition for leave to amend its answer.

I. The plaintiff makes a very plausible case by the allegations- of its petition, but it is not supported by either the evidence in the case or finding of the trial court. The tax bill sued on was prima-facie evidence of its validity; and the testimony in the case was ample to support its validity, and not tending to overturn it.

II. It is insisted that the establishment of the taxing sewer district is a nullity because no notice was given of that fact to the property owners. No such notice was necessary, as decided by this court and the Supreme Court of the United States. Speaking upon that point this court in the case of Meier v. St. Louis, 180 Mo. 391, 1. c. 409, used this language:

“As to the contention that the special assessments amount to a talcing of plaintiff’s property without due process of law, it may be said that no notice is required by the Constitution to be given property-owners respecting those matters which the Legislature itself determines, or delegates to the municipal authorities. [Spencer v. Merchant, 125 U. S. 345; Williams v. Eggleston, 170 U. S. 304; St. Louis v. Rankin, 96 Mo. 497.] Publication of notice to the property-owners, and opportunity to be heard before the tribunal upon which is devolved the duty of ascertaining facts and acting therein in the special assessment procedure, satisfies the constitutional requirement, and is due process of law as .to those matters to be passed upon by such tribunal.

“We think Section 14 of Article 6 of the amended charter of St. Louis complies with this requirement.

“When the taxing district has been fixed by valid legislation and when the apportionment of the cost of the improvement upon the property in the district has been so fixed, the owner of the property in the district cannot be heard to contend in the court that his property was not in fact benefited, or to the amount assessed in accordance with such apportionment. [Prior v. Construction Co., 170 Mo. 439.]

“The charter of St. Louis adopted by a vote of its people in obedience to an express grant by the Constitution of the State, has, with respect to municipal matters, including special assessments for local improvements, all the force and effect of" an act of the Legislature. [City of St. Louis v. Fischer, 167 Mo. 654; Prior v. Construction Co., 170 Mo. 439; St. Louis v. Gleason, 15 Mo. App. 25; Ibid v. Ibid, 93 Mo. 33; Kansas City v. Oil Co., 140 Mo. 468.] ”

To the same effect are the following cases: Heman v. Allen, 156 Mo. 534, l. c. 551; Heman v. Schulte, 166 Mo. 409, l. c. 417; Embree v. K. C. Road District, 240 U S. 242, l. c. 250.

Moreover the interested parties were given dne notice of the meeting of the Board of Public Service, where all were given full opportunity to be heard as to, and complain of, any matter which might make it in equitable to construct the sewer as projected in the district established.

III. -This court has repeatedly held that the action of the municipal authorities in the establishment of a sewer district in the absence of fraud, is conclusive and not subject to review by the courts. [Heman v. Allen, 156 Mo. 534; McGhee v. Walsh, 249 Mo. 266.]

IV. This record contains no evidence whatever of fraud, much less any evidence connecting the contractor fraud- A complaint of fraud comes too late after the work is completed. [Land & Impr. Co. v. St. Louis, 257 Mo. 291; Bank v. Woesten, 147 Mo. 467.]

And we have also held that the municipal authorities of' the City of St. Louis are the -sole judges of the dimensions of contemplated sewers. [Heman v. Allen, 156 Mo. 534.]

V. Silent acquiescence with knowledge of the improvement, especially when accompanied by acceptance Acquiescence, of its benefits, estops the property owner from denying validity of the tax bill. [Paving Co. v. Fleming, 251 Mo. 210; Heman v. Ring, 85 Mo. App. 231;. Walsh v. Bank, 139 Mo. App. 641; Smith v. Carlow, 114 Mich. 67; Fitzhugh v. Bay City, 109 Mich. 581; Atkinson v. Newton, 169 Mass. 240; Board of Commissioners v. Plotner, 149 Ind. 116; Patterson v. Baumer, 43 Iowa, 477; Wight v. Davidson, 181 U. S. 371, l. c. 377; Gibson v. Owens, 115 Mo. 258.]

Counsel present other questions for determination, but those we have decided fully dispose of the case, and therefore it is not necessary to notice the remaining points made.

Finding no error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: ELDER, J.-

license: Public Domain

text:
    FLORENCE O. HINES et al., Appellants, v. ED. FELKINS et ux. and MARION EDWARDS.
    Division One,
    June 6, 1921.
    1, PLEADING: Amending Petition: Allegation After Signature. An allegation of non-residence of the defendant in a tax suit, added after the close of the petition, but followed by the signature of plaintiff’s attorney, is not alone an irregularity sufficient to void a judgment based thereon. It is in the nature of an amendment, and being subscribed it becomes a part of the petition.
    2. -: -: ——■—: Attacking Record by Parole Evidence. Testimony by the tax attorney to the effect that, after he had filed his petition" in the suit for delinquent taxes, he was told by the clerk that the defendant was a non-resident, and that thereupon, in vacation, he added to the petition an allegation of non-residence, signing his name thereto, being an attack upon the record by parole evidence, is inadmissible in a collateral proceeding, and should be disregarded.
    Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      Barton S Impeij for appellants.
    (1) Even a cursory reading of this record will demonstrate plaintiffs’ right to reformation and foreclosure as against Felkins and wife. But even if that were not true, Edwards could not object unless he acquired title under the tax suit. _ Therefore the validity of that tax suit is the sole question here for consideration. (2) Again: if the tax judgment was without jurisdiction as to Felkins, the doctrine of innocent purchaser could not make it good as against plaintiffs. The doctrine of caveat emptor applies with its full force insofar as defects in the tax proceedings are concerned. (3) “The order (of publication) can only be made by strictly complying with the statute; for, in all cases where constructive service is substituted for actual notice, strict compliance is required.” Schell v. Leland, 45 Mo. 293; Lumber Co. v. Keener, 217 Mo. 529. (4) The petition in the tax suit was filed and became part of the record proper in that case when it was deposited ,with the clerk and by him received to be kept on file. State ex inf. v. Clardy, 267 Mo. 383; State ex rel. v. Broadns, 245 Mo. 137; State ex rel. v. Wilson, 216 Mo. 292; State v. Hockaday, 98 Mo. 593; Dawson v. Cross, 88 Mo. App. 299; 3 Words & Phrases, 2764; 8 Ency. PI. & Prac. 923 et seq. In this tax suit, the petition was not only deposited and filed but at that time had written thereon direction to issue, “Sum to Texas Co.”; and in accordance therewith the summons was issued by the clerk and by him delivered to the sheriff and was in the sheriff’s hands at the time the allegation of non-residence was entered. Under any view, the suit was pending and this petition was part of the record. R. S. 1909, sec. 1756. (5) This then being true, every clerk, officer or person was prohibited from amending or impairing this petition “without the order of such court.” R. S. 1909, sec. 1863. And an amendment without such order will not be considered. Elliott v. Railroad, 157 Mo. App. 522; Rush v. Railroad, 157 Mo. App. 512. (6) An order of publication not based upon the allegation of non-residence or other cause in the petition or an affidavit is a nullity and gives the court no jurisdiction. R. S. 1909, sec. 1770; Tooker v. Leake, 146 Mo. 433; Wright v. Hink, 193 Mo. 130; Cummins v. Brown, 181 Mo. 711. It is the allegation of non-residence or other cause in the petition or affidavit, rather than the fact of non-residence or other cause, which gives jurisdiction to the clerk to make'an order of publication. State ex rel. v. Clarkson, 88 ¡Mo. App. 553; Tooker v. Leake, 146 Mo. 429; State ex rel. v. Wessel, 237 Mo. 604. (7) Thus far- we have treated the allegation of non-residence as if it now appears to be in the petition. We submit, however, that notwithstanding the fact they are on the same paper they are separate and distinct and so appear on their faces. It cannot, therefore, support an order of publication as an allegation, because it is not in the petition; neither can it do so as an affidavit, because it is not verified. (8) Whatever view may be taken of this case, Millie Felkins has an inchoate right to dower in this land, a substantial right, which was not barred by the tax suit; and plaintiffs as to it at least have a right to reformation and foreclosure. Blevins v. Smith, 104 Mo. 583; Hilton v. Smith, 134 Mo. 511.

      Lamar & Lamar for respondent.
    (1) Defendant Marion Edwards bought the land in question May 17,1918, for a valuable consideration, without notice, at a time when the record showed the title of his grantor to be absolutely good, and received the first notice of plaintiff’s claim when he was served with summons in this action in October thereafter. (2) At the time defendant bought the land from Hamilton the record showed title in Hamilton. The records of a court import absolute verity. This includes the date when a suit is filed, the contents of pleadings and documents, and parol evidence is not admissible to contradict such records in a collateral proceeding. This is one of the conclusive presumptions of the law. Such records are conclusively presumed to have been correctly made and are not open to attack by oral testimony. Greenleaf on Evidence (16 Ed.), p. 115, sec. 15; 17 Cyc. 501; Davidson v. Rst. & Inv. Co., 226 Mo. 29; Cook v. Penrod, 111 Mo. App. 128; Freeman v. Thompson, 53 Mo. 190. (3) The purchaser at a judicial sale need only look to the regularity of the execution, the judgment and the record as then existing, and if these are regular on their face and show jurisdiction he gets title, and neither his title nor that of his grantee can be overthrown, or the jurisdiction of the court impeached, in a collateral proceeding by proof of facts which the record did not disclose at the time of the sale. Murray v. Laften, 15 Mo. 625; Waddell v. Williams, 50 Mo. 222; Abbott v. Doling, 49 Mo. 304; Mc-Dermott v. Gray, 198 Mo. 282. (4) As against collateral attack, if regularity exists on the face of the record at the time of the purchase, the purchaser is absolutely protected. Charlie v. Kelley, 120 Mo. 134; Wellshear v. Kelley, 69 Mo. 343; Kane v. McGowan, 55 Mo. 196; Gibbs v. Southern, 116 Mo. 204; Brawley v. Ranney, 67 Mo. 280; Avery v. Good, 114 Mo. 290; Rugle v. Webster, 55 Mo. 247; Lumber v. Carroll, 255 Mo. 357.
   ELDER, J.-

This is a suit in equity to reform and foreclose a deed of trust on certain land in Texas County, Missouri.

The petition is in two counts. The first count alleges that on March 18, 1911, defendants Ed. Felkins and Millie Felkins, his wife, executed and delivered to plaintiff Florence O. Hines, their promissory note for $200, payable in one year, bearing interest from date at the rate of eight per cent per annum, and agreed to secure the same by a deed of trust on the south half of the northeast, quarter of Section 15, Township 28, Range 9 west, in Texas County, Missouri; that on the same day said defendants executed and delivered to plaintiff a deed of trust purporting to secure the said note, but that through a mistake of the scrivener who drew the deed, the land conveyed was described as the south half of the southeast quarter of said Section 15, instead of the south half of the northeast quarter thereof; that defendant Marion Edwards claims some interest in the property intended to have been conveyed, the nature of which is unknown to plaintiffs, but which interest, if any, plaintiffs desire to have determined. The count closes with a prayer for reformation of the deed of trust. The second count sets up the deed of trust as sought to be reformed, alleges that the principal amount of the note secured thereby, with interest thereon from March 18, 1917, is due, and prays a foreclosure thereunder. Plaintiff Kixby Lamar is trustee under the deed of trust in suit.

Defendant Marion Edwards answered, denying generally the allegations of the petition, and pleading that he is the owner of the southhalf of the northeast quarter of Section 15 aforesaid, being an innocent purchaser for value, and that he is in possession thereof.

Defendants Ed. Felldns and Millie Felldns, who were non-residents, were duly served with summons, but made default.

At the opening of the trial of the case it was agreed that defendant Ed. Felkins is the common source of title to the land involved.

The direct evidence for plaintiffs not being material to the question here presented, we shall forego adverting thereto.

To sustain the issues for defendant Edwards, there were introduced in evidence the following deeds, to-wit: Sheriff’s deed, Record Book 61, page 452, showing sheriff’s deed under special execution for delinquent taxes, dated November 15, 1917, reciting judgment of the circuit court on August 25, 1917, against Ed. Felkins and in favor of the State of Missouri, at the relation of Jake L. McKinney, Collector, conveying the south half of the northeast quarter of Section 15, to E. L. Pollard and F. J. McGrath, for a consideration of $86; special warranty deed, dated December 3, 1917, from E. L. Pollard and wife, and Frank J. McGrath and wife, to F. R. Ellis, conveying the same land, for a recited consideration of $1000; general warranty deed, dated January 29, 1918, from F. R. Ellis and wife to Jesse and George Hamilton, husband and wife, conveying the same land, for a recited consideration of $1000; general warranty deed, dated May 17, 1918, from Jesse and George Hamilton, to Marion Edwards, conveying the same land, for a recited consideration of $400.

Defendant Edwards testified that he bought the land in question from George Hamilton, paying $400 cash therefor, for which he exhibited a receipt, and that he is living thereon; that before he paid the purchase money he examined an abstract of title which was exhibited to him; that he knew nothing about Mrs. Hines claiming a lien or holding a mortgage on the land until he was served with summons as defendant herein. The abstract of title referred to was introduced in evidence and shows the chain of title offered in evidence, but does not show the deed of trust to plaintiff Hines.

For plaintiffs, in rebuttal, there was read in evidence the petition filed May 30, 1917, in the tax suit brought by the State at the relation of Jake L. McKinney, Collector, against defendant Ed. Felkins, being the same suit under which Pollard and McGrath (remote grantors of defendant Edwards) acquired title at the delinquent tax sale held under execution issued therein. Said petition, being in the main printed, is in usual form for tax suits, but contains no allegation in the body thereof as to non-residence of the defendant Felkins. At the close the petition is signed “John H. Sanks, Plaintiff’s Attorney.” Below this signature, in hand writing, occurs the following allegation:

“Plaintiff further states that the defendant Ed. Felkins is a non-resident of the State of Missouri and cannot be served with the ordinary process of law in this State.

“John H. Sanks, Atty. for Plff.”

The above allegation is not verified by affidavit.

For plaintiffs, in rebuttal, there was also introduced in evidence the summons in the above-mentioned tax suit, dated May 31, 1917, and the return of the sheriff •thereon, as follows: “Executed the within writ in the County of Texas and State of Missouri, on the 20th day of August, 1917, by making diligent search for the within named defendant, Ed. -Felkins, and failing to find him in my said county.” There was also introduced in evidence, for plaintiff, the following: Order of Publication Record N, page 178, showing an order of publication in the said tax suit, in usual form, purporting to be made by the clerk in vacation, upon an allegation of non-residence contained in.the petition; certified copy of said order of publication, directed to the Cabool Enterprise-Press, and attested by the clerk of the court under date of June 8, 1917; proof of publication of the said order in the Cabool Enterprise-Press for a sufficient length of time (the date of the order of publication does not appear upon the record entry thereof, nor upon the printed copy); Tax Judgment Record T. page 125, in usual form, showing judgment against defendant Ed. Felkins, but reciting service upon him by publication only.

Mr. John H. Sanies testified for plaintiff as follows: “My profession is attorney at law. On May 30, 1917, I was attorney for the Collector of Texas County for the purpose of bringing actions on delinquent taxes. I filed that suit of State ex rel. Collector v. Ed. Felkins.

“Q. I show you the petition in this tax suit and call your attention to the allegation of non-residence of the defendant at the bottom, or at the end of the petition, and ask you if that was in the petition at the time the petition was originally filed? A. Well, I’ll state how it was. I filed this suit and originally ordered a summons for Texas County, and then I went down in the clerk’s office — now I don’t know how long this was filed — and the clerk said to me that this man, Felkins, was a non-resident of the State of Missouri, and didn’t live here, and we had better have a statement of non-residence, and I sat down and wrote it and I don’t know how long it had been since it was filed, but it was some time after and that allegation wasn’t verified. I didn’t swear to it.” Respondents in an additional abstract of the record, state that:

“When appellant offered evidence tending to impeach the verity of the record of the tax suit and to show that the allegation of non-residence was not in the petition when it was originally filed, the defendant offered the following objection, which was overruled:

“By Me. Lamar: We object for the further reason there are no allegations in the pleadings in this case that there are any errors in the records of this court, and it is a conclusive presumption that the records of this court are correct and they cannot be attacked, nor shown to be wrong, without being attacked in a suit in equity to change and reform the records, and for the further reason the plaintiffs are absolutely bound by the petition and records as they are,'and nothing is admissible under the pleadings in this case to change the records and show that it ought to be different from what it is at this time.”

The court rendered a judgment and decree that the plaintiff’s “take nothing by this action and that the defendant Marion Edwards be discharged with his costs.” From this judgment plaintiffs appeal.

While appellants in their briefs deal with various phases of the issue presented, they ultimately rest their case upon one contention. They insist that defendant Edwards acquired no title by mesne conveyances under the tax suit brought against defendant by Ed. Felkins by reason of the fact that the allegation of non-residence, appearing at the conclusion of the petition therein, was written without an order of court, after the petition had been filed and summons issued. Learned counsel for plaintiffs argue in substance that this allegation is not a part of the petition, that the order of publication based thereon was a nullity, and that accordingly the court was without jurisdiction to render judgment- against defendant Felkins, the common source of title. In their reply brief counsel say:

“In its last analysis, there is. but one question in this case: Is the allegation of non-residence, written af: ter the suit had been filed and summons issued, in vacation, and without an order' of the court, a part of the petition? If this question be answered in the affirmative, the judgment should be sustained; but if in the negative, it ought to be reversed.”

Accepting this statement as indicative of appellant’s final insistence, we proceed.

Standing alone, the record in the tax suit brought by the collector against defendant Felldns discloses no irregularity sufficient to void the judgment rendered therein. True, the allegation as to non-residence, which follows the prayer of the petition and the original signature of plaintiff’s attorney, does not conform to good pleading, but it is not an informality sufficient to exclude it as one of the allegations of the petition. .The allegation was in the nature of an amendment to the petition and the same being resubscribed under the amendment, the amendment became a part of the petition. [Nicodemus v. Simons, 121 Ind. 564.] As urged by plaintiffs, however, the testimony of Mr. Sanks, attorney for plaintiff in the said tax suit, was to the effect that the amendment was made by him at the suggestion of the clerk, after the petition had been filed. But, be that as it may, such testimony amounted to an attack upon the record by parole evidence, and should not have been admitted. [Davidson v. Real Estate and Inv. Co., 226 Mo. l. c. 29; Milan v. Pemberton, 12 Mo. 599; Mobley v. Nave, 67 Mo. 546.; Freeman v, Thompson, 53 Mo. 183; Dennison v. County of St. Louis, 33 Mo. 168; Cook v. Penrod, 111 Mo. App. 128.] Accordingly, disregarding such testimony, 'as we must, we find that an allegation of the non-residence of defendant Felkins appears on the face of the petition, that an order of publication was properly made by the clerk in vacation, that proof of publication of such order was submitted to the court, and that pursuant thereto judgment was rendered against Felkins. Under the decisions of .this court it follows that that judgment cannot be collaterally attacked, as here attempted. [McDermott v. Gray, 198 Mo. 266; Vincent v. Means, 184 Mo. 327; Tooker v. Leake, 146 Mo. l. c. 429, 430; Payne v. Lott, 90 Mo. 676; Schmidt v. Niemeyer, 100 Mo. 207; Kane v. McCown, 55 Mo. 181; Brawley v. Ranney, 67 Mo. 280.] Hence, the judgment being regular on its face, and the sale thereunder being unquestioned, such sale was sufficient to convey title to the purchasers thereat. [Stevenson v. Black, 168 Mo. 549; Wellshear v. Kelley, 69 Mo. 343; Jones v. Driskill, 94 Mo. 190; Allen v. McCabe, 93 Mo. 138.] We therefore rule the point against appellants.

The error in the admission of evidence tending to vitiate the proceedings in the tax suit not being prejudicial to appellants, and a review of the entire record having served to convince us that the judgment was correct, we hereby affirm the same.

All concur.


author: WOODSON, P. J.

text:
    LILLIAN F. JACKSON v. JOHN R. MILLER et al.; JOHN M. JACKSON et al., Appellants.
    Division One,
    June 6, 1921.
    1. DEED: Mistake as to Legal Effect. A widow, with minor children and in great mental distress, was advised hy her brother-in-law that, if she would convey her real estate to him and let him convey it back to her, she would have entire ownership, control and right of disposition during her life, and upon her death it would go directly to her children; and in accordance with such advice she conveyed the property to him for life, with remainder to the heirs of her body. The deeds were without consideration, and made in the honest belief that if made she could dispose of the property at any time to secure means to support and educate her children. In a suit by her to cancel the deeds, a guardian ad litem, was appointed for the defendant children, and he alone appeals. Held, that the deeds should be set aside.
    2.--: -: Interest of Unborn Remaindermen. And such deed should be set aside, although said widow may yet have other children who will survive her and become remaindermen. Since all the living children are made parties, cancellation of the deeds will not be denied on the possibility that there may be future issue not now in esse.

    Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.

    Affirmed.

      Cleary & Barnett for appellants.
    (1) The judgment and decree of the trial court should not have been entered. The rules of equity require that all those interested in the subject-matter of the litigation must be brought into court. This was not done, for the reason that the heirs of the body of plaintiff cannot be determined until the time of her death. The word “heirs” does not.mean “children.” Emerson v. Hughes, ilO Mo. 627. No one has heirs while living. The minors involved in this case are now the only children of the plaintiff, but she has not passed the age when she would be incapable of bearing other children. Consequently, at the time of her death some of her present children may not be living and other children may have been born to her. If any of the present children should die during the lifetime of the mother, leaving issue, then that issue would be an heir, and not the parent. It will, therefore, be seen that it is impossible to get all of the parties interested in the remainder of the estate in the property herein involved into court at this time. The rights of those not properly in court cannot be adjudicated. As to them, the decree would have no effect. Lockridge v. Mace, 109 Mo. 162; Eozier v. Graham, 146 Mo. 352. (2) We have been unable to find any case exactly like the case at bar, but we beg to refer the court to certain cases in which the doctrine of representation has been denied, which cases are in point, at least, by analogy: Downing v. Sprecker, 35 Md. 474; Ex parte Miller, 90 N. C. 625; Overman v. Simms, 98 N. C. 437; Breit v. Yeaton, 101 111. 242; Monarque v. Monarque, 80 N. Y. 320; Barnes v. Luther, 77 Hun, 234, 28 N. Y. Supp. 400. (3) There was not sufficient evidence to warrant the court in setting aside the deeds from the plaintiff to Miller and from Miller back to the plaintiff. There are two grounds alleged in the petition — possibly three: (a) Lack of consideration, (b) mental incapacity, and (3) legal fraud. As to the first, the deed expresses and imports a consideration, and it may not therefore be destroyed by parol evidence to the effect that there was no consideration. Devlin on Real Estate (3 Ed.) par. 834, p. 1501. The entire transaction must be looked into as a whole, and by so doing it becomes apparent that the true consideration was love and affection for plaintiff’s children, which is a good consideration. Studybaker v. Cofield, 159 Mo. 596; 2 Devlin on Real Estate (3 Ed.) par. 806. The evidence is insufficient to prove mental incapacity. No fraud on Miller’s part, even legal fraud, was shown, for he was not seeking any benefit or gain for himself. It was, at most, a mere error of judgment of her agent, intending and striving to act honestly in behalf of the plaintiff.

      Scarritt, Jones, Beddon £ North for respondent. •
    (1) It is conceded that everyone that could possibly be made a party, in his own person, is in court. It further appears that the petition charges that the children of plaintiff, Mrs. Jackson, are made parties not only in their own right, but as representing the whole of the class that may compose the “heirs of the body” of Mrs. Jackson. No suggestion is made that any persons not now in .being, that might possibly hereafter acquire an interest, could have been brought into court in any other manner. If the theory of the learned guardian ad litem is correct, then Mrs. Jackson could not maintain this suit until it was fully determined who were the heirs of her body, and that could not be determined until her death. The argument carried to its logical result is, necessarily, that no matter under what circumstances of mentality or fraud Mrs. Jackson may have deeded her property, she is powerless to seek relief in her lifetime, because, if the deeds as written stand, there is a bare possibility that others not now in being, that cannot be directly made parties to a suit, might secure an interest by reason of such deeds. It is by reason of circumstances and situations such as we have here that the doctrine of parties by representation has arisen and been so often applied. It is a doctrine growing out of necessity. Faulkner v. Davis, 18 Gratt. 651. (2) This equity doctrine of parties by representation is so old and well established, and the reasons and necessity therefor so apparent, that we think it would not be appropriate to more than cite some of the leading cases. Hopkins v. Patton, 257 111. 346; Thompson v. Adams, 205 111. 552; Temple v. Scott, 143 111. 290; McCampbell v. Mason, 151 111. 500; Hale v. Hale, 146 111. 227; Gifford v. Hart, 1 Sch. & L. 408; Harrison, v. Wallton, 95 Va. 721; Faulkner v. Davis, 18 Gratt. (59 Va.) 690; Wilson v. Schaefer, 107 Tenn. 300; Champlin v. Champlin, 4 Edw. (N. T.) 228; Sikemeier v. Galvin, 124 Mo. 367; Eeinders v. Koppelman, 68 Mo. 482; Mead v. Mitchell, 17 N. Y. 210; Gavin v. Curtin, 171 111. 640; Freeman v. Freeman, 56 Tenn. 301; Bofil v. Fisher, 3 Eich. Eq. 1. (3) The doctrine of representation can be applied in the case at bar with less doubt and concern than in most of the reported cases, because, in the latter, the parties not in esse actually had an interest in the property in question, but in this ease the allegation, the proof and the finding’ of the trial court is that the deeds in question were a nullity, so that neither the present children of Mrs. Jackson nor any other possible heirs of her body acquired any interest in the property here in question. (4) The evidence fully justifies the court in setting aside the deeds here in question because of the mental condition of Mrs. Jackson, because the conduct of the other contracting party, Mr. Miller, was such as to amount to legal fraud, because there was a mutual mistake, and the deeds did not embody the intention of even Mr. Miller. (5) Besides all this, there was absolutely no consideration given or received in the transaction. The common sense of the situation is that the grantees here, having paid no consideration, cannot possibly be inj'ured by the setting aside of these deeds. A.s the “heirs of the body” of Mrs. Jackson paid nothing and parted with nothing for their apparent interest in the property in question, under the deed from Miller to Jackson, they can lose nothing by having the same set aside.
   WOODSON, P. J.

The plaintiff brought this suit in the Circuit Court of Jackson County against the defendants to set aside and cancel two certain deeds mentioned in the pleadings and evidence, conveying certain lots of ground in said city to the defendants, by the plaintiff. The decree of the court was in favor of the plaintiff, and the guardian ad litem of the infant defendants dfily appealed the cause to this court.

The defendants John R. Miller and wife filed an answer, in which they admit that at the time that the deeds were made they had no idea that by the execution of them they were depriving plaintiff from selling, mortgaging or otherwise disposing of the property.

The facts are few and undisputed, and are thus stated by counsel for the respondent:

“The facts of this case are few and simple. Plaintiff, Lillian F. Jackson, is a widow in very moderate circumstances, and has four minor children, and it is incumbent upon her to provide for herself and children, and to rear and educate them.

“ Prior to the death of her husband, in October, 1917, plaintiff was the owner in fee simple of the several lots or tracts of real estate described in the petition. For several years before her husband’s death, the latter was greatly afflicted, both physically and mentally, and the burden of his care, as well as that of herself and children, was thrust upon Mrs. Jackson. The condition of her husband was such that it finally culminated, on October 30,1917, in his committing suicide. The mere statement of these facts, without other evidence, is sufficient to indicate the physical and mental condition of Mrs. Jackson immediately after her husband’s death. Luring the few years before her husband’s death, Mrs. Jackson had relied upon defendant, John R. Miller, her sister’s husband, to look after her business affairs, as her time and attention were taken up with the care of her children and afflicted husband, and after her husband’s death, and in her prostrated condition immediately thereafter, she naturally leaned even more upon her brother-in-law. This brother-in-law conceived the idea that he could aid and protect Mrs. Jackson and her children in the matter of the property she owned by having the title held by her other than in fee simple, as it was then held. He thereupon advised her that it would be wise to deed the property to him and let him deed it back, so that she would have entire ownership, control and right of disposition during her life, but so provided that in case of her death it would go directly to thechildren. Being ignorant of such matters, and being-in such physical and mental condition at the time that she was wholly incapable of thinking or acting for herself, or even suggesting that they had better take legal advice, she simply left it to Mr. Miller. He thereupon drew a deed conveying’ all of her property to him. He paid no consideration whatever. He thereupon deeded the property back to Mrs. Jackson for life, with remainder to the heirs of her body. This was in December, 1917. So the matter stood until some time in 1920, Mrs. Jackson found it necessary to dispose of some of this property in order to secure means to provide for and educate her children. Her brother-in-law, Mr. Miller, placed some of the property on the market and found a purchaser, and a contract of sale was entered into. Upon the title being examined by an attorney, it was then for the first time discovered by Mrs. Jackson and by Mr. Miller just the shape into which .the title had been put by the deeds he had drawn and had executed. The lawyers advised them that these deeds did not carry out the idea that Mr. Miller had in mind, but had placed the property in such a condition as to make it practically impossible-of disposition. Thereupon Mrs. Jackson, for the first time, sought legal advice, and this suit was'brought to cancel and set aside the deeds of December 19,1917, from herself to Mr. Miller and from Mr. Miller and wife to her. The grounds for annulling these deeds are several: (1) Deeds are mere contracts and there was never a meeting of the minds of the parties to these deeds. There was a mutual mistake. The instruments, as written, did not portray what either party had in mind. (2) The physical and mental condition of Mrs. Jackson was at that time such that she was incapable of thinking and acting for herself, and while in such condition she was easily misled by the advice and importunities of her brother-in-law. His action in taking advantage of her then physical and mental condition, and in undertaking to advise her and in inducing her to execute the deeds in question, without securing, competent legal advice, amounted to legal fraud, although he may have been acting in the utmost good faith and with an honest desire to assist her. (3) The deeds were made without any consideration whatever.

“This suit is brought against John R. Miller, to whom Mrs. Jackson deeded her property at his request, and against his wife, who joined in the deed conveying; the property back to Mrs. Jackson for fife, with remainder to the heirs of her body. The four children of Mrs. Jackson, being all the present issue of her body, were also made parties defendant. The appellant, John M. Cleary, was appointed by the court as their guardian ad litem. It is alleged in the petition that these children are made parties as representing their own interests, and also as representing the whole class of the ‘heirs of the body’ of Mrs. Jackson. All parties, now in being, having any possible interest in the property in question, were made parties to this suit. Upon a hearing, the trial court found for plaintiff, and set aside the deeds in question, and the guardian ad litem of the infant defendants, acting with a caution and diligence that is commendable in one serving in such a capacity, has appealed to this court.”

This court is asked to reverse the decree of the circuit court for two reasons, and the first is stated in this language:

“The plaintiff, as before stated, may yet have other children who may survive her and become remaindermen, or her present children may die prior to her death, leaving issue, and such issue, on the death of the plaintiff, would become remaindermen and would take under the deed as purchasers and not as heirs of their parents.”

In support of this proposition counsel cite the case of Lockridge v. Mace, 109 Mo. 162. We have carefully read that case,' and are unable to see in what way it supports the contention of counsel. It simply holds that an executory devise to the unborn child of an unborn child is void, as being against the rule of perpetuity. The facts of that case in brief were these: A testator devised real estate to his wife for life, remainder to his son, seven years of age, for life, remainder to the son’s children for life, remainder to the son’s grandchildren in fee. Upon those facts this court very properly held that where a devise constitutes but one disposition of property and is void for remoteness, it is void in tato.

This case is more nearly like the case of Reinders v. Koppelmann, 68 Mo. 482. In that case it was held that partition of real estate would not be denied because there was a contingent estate in the land, which may hereafter be vested in persons not yet in esse. It was also there held that those not in esse were represented by those who took subject to their rights, and that partition or sale was conclusive as to the parties not in esse. While it is true that the decision in that case was based upon a statute authorizing the decree there rendered, yet I am unable to see what probative force the statute mentioned could' have, without the parties in esse had the legal authority to represent those not in esse. That statute did not undertake to give those in esse the legal right to represent those not in esse, but that authority was attributable to the General Practice Act of the State. It must follow as a legal proposition that if those in esse did not have the authority to represent those who were not, then the statute mentioned would have been unconstitutional, null and void as to those not in esse, because it would be taking their property without due process of law within the meaning of both the State and Federal constitutions. The mere fact that the Reinders-ICoppelmann case was a partition suit can in no wise make any difference in the principle of law involved in that case and this one. For the manifest reason both deal with title and the one just as effectually as the other.

We therefore rule this point against the appellants.

It cannot be gainsaid that a decree in the partition of land is just as effectual to establish title to real estate as would be a deed or other conveyance made for that purpose (Holladay v. Langford, 87 Mo. 577); and if ir conveys the title, what possible difference in principle can it make whether it was by deed or decree of court: I respectfully submit, none whatever.

It is next insisted by counsel for appellants that there was not sufficient evidence to warrant the court in setting aside the deeds from the plaintiff to Miller and from Miller back to the plaintiff. We are unable to lend our concurrence to this insistence. The answer of Mr. and Mrs. Miller, who seem to be perfectly frank and fair in the matter, and tlie testimony of respondent, fully establish every fact stated in the statement of the case, and by comparing that statement with the statement of the case as made by counsel for appellants it will be seen that they agree in almost every detail, in fact, this opinion could, have been predicated upon the statement of the case made by counsel for appellants, as upon that of respondent. There is no merit in this insistence.

Finding no error in the record the judgment is affirmed.

All concur.