author: ROY, C.

text:
    W. C. MULLINS, Appellant, v. MOUNT ST. MARY’S CEMETERY ASSOCIATION and THE FIRST NATIONAL BANK OF KANSAS CITY.
    Division Two,
    June 23, 1914.
    1. BENEFIT ASSESSMENTS: Sewer: Cemetery: Charter of Kansas City. Under the charter of Kansas City the land of an incorporated public cemetery is chargeable with its share of ,the cost of constructing a district sewer.

      2. CEMETERY LOT: Easement. The holder of a lot in a cemetery has no title to or ownership in the lot. He has a mere easement or burial right, subordinate to the ownership of the corporation or trustees owning the cemetery.
    3. BENEFIT ASSESSMENTS: Sewer District: Cemetery: Tax Bills to Issue Against the Whole. Special tax bills to cover the cost of a district sewer are properly issued against the entire grounds of a cemetery within the district, and not against the separate lots therein.
    4. -: -: Fraud: Knowledge of Contractor. Fraud In laying out a sewer district is no defense to the collection of the special taxes for the construction of the sewer, unless such fraud is known to the contractor who does the work.
    Appeal from Jackson Circuit Court. — Son. Thomas J. Seehorn, Judge.
    Reversed and remanded.

      Fyke <& Snider for appellant.
    The only question involved in this case is whether it was proper to issue the special tax hills against the entire tract or parcel of land belonging to the Cemetery Association, or whether separate tax bills should have been issued against each lot as platted by the respondent. Appellant contends that the tax bills were properly issued against the entire tract or parcel, and contends that the court below erred in holding otherwise and in rendering judgment for respondent. Cemetery v. .Buffalo, 46 N. T. 503; Perkins v. Lawrence, 138 Mass. 361; Kincaid’s Appeal, 66 Pa. St. 411; Went v. M. P. Church,, 80 Hun, 266; Jacobs v. Children of Israel, 107 Ga. 521; Scheir v. Trinity Church, 169 Mass. 21; Gardner v. Cemetery, 20 R. I. 648; Richards v. Church, 7 How. (N. T.) 476; Partridge v. First Church, 39 Md. 635; Rayner v. Nugent, 60 Md. 518; Dwenger v. Geary, 113 Ind. 112; Page v. Symonds, 63 1ST. H. 17; Gowen v. Bessey, 94 Me. 114.

      Willimi Moore and McCune, Harding, Brown S Murphy for respondents.
    The tax hills in suit are void, being in violation of section 10, article 9, charter of Kansas City of 1889, which is section 7, article 8, of the charter as published in 1909. It was the duty of the Board of Public Works to apportion the cost of the sewer against all the lots of land in the sewer district. Heman Construction Co. v. Railroad, 206 Mo. 172; Mullins v. Cemetery Assn., 239 Mo. 681. The charter of Kansas City, sec. 7, art. 8, as published in 1909, provides for the apportionment of the cost of the sewer against each lot or parcel of land in the district, exclusive of streets and alleys. This section provides that “as soon as the work of constructing any district sewer shall have been completed under any contract let for' the purpose, the Board of Public Works shall compute the whole cost thereof and apportion and charge the same as a special tax against the lots of land in the district, exclusive of improvements and in the proportion their respective areas bear to the area of the whole district, exclusive of streets, avenues, alleys and public highways, and shall, except as hereinafter provided, make out and certifydn favor of the contractor or contractors to be paid, a special tax bill for the amount of the special tax against each lot in the district.” The exception referred to in this section is found in section 14, which provides that tax bills shall not be issued against land owned by the city. This was the state of the charter when these tax bills were issued. It will be observed that the charter does not discriminate between lots used for one purpose and those used for another. In TIeman Construction Co. v. Railroad, supra, the court held that the fact that the land was railroad right of way made no difference. In the case of Powers v. Grand Rapids, 98 Mich. 396, the court held that the right to assess for public improvements does not depend upon the use to which the owner may put the lots. In Fitzgerald v. Thomas, 61 Mo. 500, the court said, “a lot means a lot of ground as hounded and described on plats or as subdivided and bounded by conveyances by the owners.” State ex rel. v. St. Louis, 211 Mo. 592; Merrill v. Railway, 25 Kan. 294; Glover v. Terre Haute? 129 Ind. 593; State v. Lewis Co., 72 Minn. 87. Even if the contention of the appellant that the word “lot” as used in the charter does not mean a lot as described on a cemetery plat, were true, he could hardly go further and say that the deeds of conveyance made by the cemetery association, by which several lots so platted were conveyed as one tract to one person did not, under the decisions of our court, vest in the grantees of these deeds, title to the lots within the meaning of the charter. If there is any decision of any court to the effect that the word “lot,” as used with reference to real estate, means, a lot of any particular size, we have been unable to find it. The authorities in this State are unanimous upon the proposition that where the charter of a city provides that tax bills shall be issued against each lot in a certain district, it is imperative that this should be done, and that a tax bill issued against several lots collectively in such a case, is void. This point was squarely and unequivocally decided in the case of St. Louis v. Provenchere, 92 Mo. 66. In Hannibal v. Richards, 35 Mo. App. 28, the court said: “Such a bill neither authorizes a judgment for the whole amount nor a separate amount against each lot.” To the same effect are: Knoll v. Welkin, 13 Mo. App. 275; Christian v. Taussig, 8 Mo. App. 602; Cooley on Taxation (3 Ed.), p. 1267.
   ROY, C.

This is a suit on a special tax bill, in which judgment went for the defendant. The petition was filed July 24, 1907, and is in two counts based on special tax bills for tbe construction of sewers. The first court is on a bill for $17,598.28, dated October 12, 1904. It is payable in four annual installments, beginning May 31, 1905. It bears seven per cent interest, with the provision that if there is default in the payment of any of the installments the whole shall become due and bear ten per cent from the date of the tax bill. The second count is on a bill for $1531.71, dated September 1, 1905, bearing interest at ten per cent per annum. Both said bills are against the land included in Mount St. Mary’s Cemetery in Kansas City, containing about thirty-five acres.

The answer admits that the defendant owned the land and alleges that it holds the land as trustee for the improvement of Mount St. Mary’s Cemetery, of which said land is a part, and also for certain orphan asylums of Kansas City, except such portions or lots thereof as it has sold and conveyed for burial lots. It alleges that the land described is a public cemetery, thirty-five acres in area, not connected in any way with the sewer or sewers for the construction of which said tax-bills are alleged to have been issued, and that in building said sewers there was no provision made by which drains on said land should be connected with said sewers and that said cemetery lands derive no benefit whatever from said sewers and that the tax-bills equal or exceed the total value of the land.

That for said reasons the ordinances authorizing the issuance of the tax bills in this suit are void because they are fraudulent and oppressive and that the enforcement of the tax bills in this suit would constitute a taking under the guise of taxation of the private property of the defendant for public use without any compensation and is in violation therefore of sections 20, 21 and 30 of article 2 of the Constitution of the State, and also in violation of the Fourteenth Amendment to the Constitution of the United States. There is no allegation that the plaintiff knew of or was a party to such fraud.

It alleges that the cemetery grounds have been duly platted into lots and the plats thereof filed in the office of the recorder of deeds of Jackson county, Missouri; that many of said lots have been sold and conveyed to persons who are now the beneficial owners and that the act of the Kansas City Board of Public Works in apportioning the special taxes for the construction of said sewer against the thirty-five-aere cemetery tract as one lot was in violation of article 8, sec-. tion 7 of the charter of Kansas City, Missouri.

The reply was a general denial.

A jury was waived by the parties and the trial was before the court. The plaintiff introduced the tax .bills in evidence. The defendant introduced in evidence its charter and articles of association, dated December 24,-1898, also its by-laws which included the following:

“8. The board of directors shall have-power to make additional by-laws from time to time for the gov-. ernment of this association, which are not inconsistent with the Constitution or laws of the United States or of the State of Missouri. And it shall also have power to prescribe rules and regulations from time to time governing the use and maintenance of the cemetery grounds, which shall be binding on the association and on all lot holders in said cemetery.
“9. The board of directors shall have power to see to it that the cemetery grounds and all additions and extensions thereto shall remain in a proper state of ornament and repair, and may from time to time dispose of lots in said cemetery, which shall, however, be used for no other purpose.
“The surplus funds of this association shall from time to time be used and applied to the support and relief funds needed by local Catholic orphan asylums in Jackson county, Missouri, by and with the consent of the bishop of the Kansas City diocese.
“10. One-third of the receipts from the sale of lots shall be set aside as a maintenance fund, and the interest thereof devoted to the perpetual care of cemetery./

Said cemetery was originally laid out in 1877 by a corporation under the same name as that of the defendant and of which the defendant seems to be merely a continuation. Prior to such incorporation in 1898, •the deeds made by the cemetery corporation to the lot holders contained the words “grant, bargain and sell” in the granting clause, and also had the following clause:

“To have and to hold the same unto the said party of the second part, his heirs and assigns only as a place of burial, subject, however, to the conditions, stipulations and regulations hereto annexed and made part of this deed, and which are the conditions upon which this deed is made,” followed by a clause of general warranty.

The annexed stipulations and regulations, among other things, contained the following: “1. No lot shall be used for any other purpose than as a place of burial for the dead.”

Prior to 1898 there were sold 850 lots by deeds of that character. After the incorporation of defendant in 1898, purchasers of lots were not given deeds of conveyance for the lots, but they received certificates, each of which stated that the holder thereof was entitled to the exclusive use of the lot therein named for the interment of members of his family forever, subject to the by-laws, rules and regulations of the defendant. Since the adoption of that form, certificates of that character have been issued for about 600 lots. The evidence for the defendant shows that there have been more interments in single graves than in lots. About one-third of the area of the cemetery remains undisposed of to lot owners.

Plaintiff asked the following instruction, which was refused:

“The court declares the law to be that if the court finds from the evidence that the land described in the tax bill sued on is enclosed in one general enclosure, and the said land is under the charge and control of the defendant cemetery association, then it was legal and proper to issue the special tax bills against the same, as one tract, and the special tax bills are legal and valid as against whatever interest the said defendant has in said land, and plaintiff is entitled to a special judgment against said land, and whatever interest said defendant has therein.”

The court gave the following instruction for defendant :

“1. The court, sitting as a jury, declares the law to be: That if the court finds from the evidence that a part of the tract of land described in the tax bills in evidence, at and prior to the dates when the ordinances mentioned in said tax bills were passed, was used for the purposes of a cemetery, and had, prior to said dates, been platted into cemetery lots and that a plat of said cemetery had, prior to said dates, been filed in the office of the- recorder of deeds for Jackson county, Missouri, and that some of said lots had, prior to said dates, been conveyed by the defendant to other persons, and deeds therefor had been filed for record and had been recorded in the office of said recorder of deeds, prior to said dates, then said tax bills are void and the finding must be for the defendant.”

There is no evidence in the case as to whether any sewer was laid in the cemetery grounds, nor as to how near such sewer is to those grounds. Neither is there any evidence as to the size or topography of the sewer district, or the relative position of the cemetery therein.

I. On the question as to whether cemetery grounds are subject to sale for the payment of special tax bills for the construction of a sewer, the opinion of this court on the former appeal **" * (239 Mo. 681) is conclusive on the parties herein.

II. In order to determine whether the tax bills were properly issued against the entire tract which constitutes the cemetery, or whether separate bills should have been issued against each lot therein, it is necessary to determine the character of the ownership of the lots by the so-called lot owners. All the deeds and certificates under which lots are held in this cemetery provide that they are held for burial purposes only.

The first case on the subject in the United States is that of the Brick Presbyterian Church, 3 Edw. Ch. 155, decided by the Chancery Court of New York in 1837. It held that purchasers of burial lots in church grounds holding by deeds of lease and release took the fee. That case was quoted in Windt v. German Reformed Church, 4 Sandf. 47Í. But in the latter case the lot holder did not claim under a deed, so that reference to the former case was merely obiter. ' Since then many cases have been decided. Some of them involved lots held under conveyances by warranty deed in fee simple. In some the lot holders had a mere certificate entitling each to bury in the specified lot. In others there was no deed or certificate. But all of them decide that the lot holder has no title to or ownership in the lot, but has a mere easement or burial right, subordinate to the ownership of the corporation or trustees owning the cemetery.

In the case of the Reformed Presbyterian Church of New York, 7 How. Pr. 476, decided in 1853, it was held that deeds to lot holders containing the words, “do sell, convey and confirm nnto the party of the second part, his heirs and assigns forever, to be used for the purpose of a burial place only, that certain piece of ground,” etc., were grants of the use of the lot as a place of burial in subordination to the right of the corporation in the freehold, and that the trustees had a right to sell in compliance with the statute and remove the remains of the dead, under the order of court.

The case of Went v. Methodist Protestant Church, 80 Hun, 266, involved the rights of persons holding burial lots under deeds of full warranty purporting to convey the title to the land. The court said, l. c. 271: “The question of title cannot be determined solely by the terms of the deed given to the lot owner. Reference must of course be had to the act of the legislature creating the corporation from which title is derived and to the limitations upon its power and to the manifest intent of the parties to the instrument. Every owner of a cemetery lot must be deemed to have purchased and to hold it for the sole purpose of using it as a place of burial, and, as was said in Kincaid’s case, he is bound to know at his peril that it may become offensive by the residence of many people in its vicinity and that its use must yield to laws for the suppression of nuisances.” See, also, Kincaid’s Appeal, 66 Pa. St. 411; Perkins v. Lawrence, 138 Mass. 361; Sohier v. Trinity Church, 109 Mass. 1; Partridge v. Independent Church of Baltimore, 39 Md. 631; Richards v. Northwest Protestant Church, 32 Barb. 42; State v. Scoville, 78 Conn. 90.

The only case involving the very question now under consideration is Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506. That was a suit to enforce the payment of a special assessment for the construction of a sidewalk. It was held that the assessment was properly made against the entire cemetery grounds. We need not add to what is said in those cases. They show clearly that if the separate cemetery lots were made the units for special tax purposes, the result would he unsatisfactory to all concerned. Some lots would be sold for the tax, and thus diverted to secular uses. Other lots would be saved from sale by the payment of the tax against them. The cemetery, instead of being one consecrated place of burial, or -all devoted to business or residence purposes, would be broken up into small fragments used for different and incompatible purposes, rendering the cemetery unfit for the repose of the dead or the activities of the living. It follows that the instruction asked by the plaintiff should have been given, and that those given for the defendant should have been refused.

III. Fraud in laying out a sewer district .is no defense to the collection of the special taxes for the construction of the sewer, unless such fraud is known to the contractor who does the work. [Jennings Heights L. & I. Co. v. City of St. Louis, 257 Mo. 291, and the cases there cited.] The answer in this case does not allege such knowledge on the part of the plaintiff. The defense of fraud is not sufficiently raised by the answer, nor is it shown by the evidence, and, therefore, is not in the case.

The judgment is reversed and the cause remanded.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    THE SCHNEIDER GRANITE COMPANY v. GAST REALTY AND INVESTMENT COMPANY and EMILY GAST, Appellants.
    Division Two,
    June 23, 1914.
    1. BENEFIT DISTRICT: Boundaries: Next Parallel or Converging Street: Charter of St. Louis: Constitutional Question. Neither the State nor the Federal Constitution was violated by fixing the boundary of a benefit district in St. Louis, drawn in accordance with Art. 6, Sec. 14, of the city charter, midway between the street to be improved and the next parallel or converging street, although the latter street was over 900 feet distant from the street to be improved.
    2. -: -: “Lots.” The fact that a plat or survey accompanying a commissioners’ report in partition has been recorded in the office of the recorder of deeds, does not render the divisions of the land, as marked on the plat, “lots” within the meaning of Sec. 14, Art. 6, charter of St. Louis, governing the fixing of the boundaries of benefit districts for street improvements, there being nothing to show that said plat was ever approved or accepted by the St. Louis board of public improvements.
    3. -: -: Inclusion of Other Lands: Who May Complain. A property owner contesting a tax bill for street improvements in St. Louis, may not maintain a contention that other land has been improperly included in the benefit district, when its inclusion could only operate to lessen the proportion of the costs assessed against him.
    4. -: Including City Property: Excessive Appropriation: Disposal of Excess. The fact that the city has by ordinance appropriated, to cover the cost of street improvements to be assessed against the city’s property in a benefit district, a larger sum than was necessary, does not entitle the other property owners in the district to a proportionate reduction to be made up out of the excess appropriated by the city.
    5. -: -: -: -: This Case. Section 4 of an ordinance of the city of St. Louis providing for a street improvement and for the issuance of special tax bills in payment therefor, required that the cost of the work, except so much as was provided to be paid by the city by Sec. 5 of the same ordinance, should be assessed as a special tax upon all the property within a benefit district defined and bounded by Sec. 14, Art. 6, of the city charter. Section 5 of the ordinance set apart $17,168 to pay the city’s proportion. The contractor’s contract with the city was based upon said ordinance.. When the boundaries of the benefit district Were finally and correctly ascertained, the amount to be paid by the city as the proportion of the costs assessable against the city’s land, was only $7994.78. Held, that the remainder of the total cost over $7994.78 must be assessed against the other property in the district, the mere appropriation of the larger sum by the city not operating to fix the city’s proportionate part.
    6.-; -j-ax Bills: Notice of Issuance. The charter of St. Louis provided that tax bills may be collected with six per cent interest after thirty days’ notice of their issuance, it being the duty of the city marshal, at the holder’s request, to serve upon the party or parties named in the tax bill a notice of the issuance thereof. Held, that a notice which, although it failed to describe correctly and completely the land covered by the tax bill, was sufficient to apprise the owner that it was' issued against his land, was compliance enough with the charter provision.
    7. -: -: -: To Subsequent Purchasers of the Land. The charter of St. Louis makes no provision for notifying subsequent purchasers of the issuance of tax bills, and therefore one who has become the record owner of property after the prior holder has been notified, has no right to notice, even though the tax bill has been corrected, and amended by the addition of her name as the owner of a portion of the land.
    8. -: -: Amendments. Irregularities in the issuance of tax bills may be corrected by amendments made by the persons who originally issued them.
    Appeal from St. Louis City Circuit Court. — lion. Daniel D. Fisher, Judge.
    Affirmed.

      Johnson, Rutledge S Lashly for appellants.
    (1) The benefit district was fixed automatically by the charter at the time of the passage of the ordinance, authorizing the improvement on July 24, 1907. Collier Estate v. Paving Co., 180 Mo. 362; G-ilsonite v. Fair Assn., 231 Mo. 589; State ex rel. Co. v. St. Louis, 183 Mo. 230. (2) The northern boundary of the assessment district west of Broadway should have been the southern line of Old Hornsby avenue, as the improvement did not extend north of that point. (3) The western portion of Old Hornsby avenue, which ran parallel tq Broadway, and which was the next parallel street west of Broadway at the time of the passage of the ordinance, should have been used by the city in fixing the midway line west of Broadway at that point. (4) The midway line west of Broadway, parallel to the western portion of Old Hornsby avenue, which was actually fixed after the work was completed, was drawn parallel to Church road as it existed at the time the work was completed, although there was no public street at that place at the time the ordinance was passed; that is, Church road in July, 1907, did not extend that far north. (5) If the charter be so construed as to hold that Church road between Hornsby avenue and McLaran was the next parallel street west of Broadway, then the charter provision was. unconstitutional and in violation of section 1 of article 14, of the amendments of the Constitution of the United States and in violation of sections 20 and 30 of Article 2 of the Constitution of Missouri. (6) The benefit district was erroneous and illegal and not in conformity to the Charter, in that it did not include the full depth of lots “H” and “I”, the platted lots fronting on the east side of Broadway, owned by the city. State ex rel. v. St. Louis, 183 Mo. 230; (7) Ordinance 23,137, which levied the special tax, only levied as a special tax against the property in the benefit district, the difference between the total cost of the improvements and $17,168, the city’s portion of the cost as estimated by the president of the board of public improvements, and appropriated by the ordinance. In figuring the tax bills there was assessed, however, the difference between the total cost and $7974; in other words, the tax bills issued against the property in the benefit district, exceeded by $10,000 the amount of the tax levied as prescribed by the ordinance. Secs. 15, 17, 28, art. 6, Charter, St. Louis. (8) When the plaintiff contracted with the city, it contracted on the basis of ordinance 23,137, which provided that only the difference between the total cost and $17,168 should be levied as a special tax against the property in the benefit district. The contract followed the ordinance and provided that the tax bills for the difference between the total cost and $17,168 should be assessed against the property in the district. The plaintiff knew what it was contracting for and knew then what was tó be paid by the district. The tax bills have been issued for $10,000 in excess of the amount called for by the plaintiff’s contract, and the whole issue, including the tax bill in suit is, therefore, void. Poplar Bluff v. Bacon, 144 Mo. App. 476. (9) Sections 15, 27 and 28, of article 6, of the charter, provides that there'should be endorsed on the ordinance by the president of the board of public improvements, an estimate of the total cost of the work, and also an estimate of the city’s share of the work, and of the fund from which it is to be appropriated. The city’s proportion of the cost of this work was estimated at $17,168, and the share against the property of the benefit district was estimated at $23,824, by deducting the city’s share from the total cost. When the work was finished and the tax bills were issued, and the benefit district finally laid out, the city was assessed with only $7974, and the property in the benefit district was assessed $34,296. Such a discrepancy between the estimate and the cost vitiates the estimate. It was no estimate at all within the meaning of the charter, and the whole proceeding is void. Boonville ex rel. v. Rodgers, 125 Mo. App. 149; Kirksville v. Coleman, 103 Mo. App. 220. (10) The ordinance is in conflict with the charter, and, therefore, void. (11) The original tax bill sued on in this case is void, for the reason that the description of the property contained in the original tax bill was so vague and uncertain as to make the bill a nullity and it could not be cured by an amendment. Adkins v. Quest, 79 Mo. App. 76; 25 Am. & Eng. Ency. Law, 1223; Jefferson City v. "Whipple, 71 Mo. 520; Winningham v. Trueblood, 149 Mo. 572; Jones v. Carter, 56 Mo. 403; Clemens v. Rannells, 34 Mo. 579; Bell v. Sanders, 207 Mo. 281. (12) Under the provisions of section 25 of article 6, of the charter, special tax bills for street improvements are not due until thirty days after notice. The only notice given related to the insufficient and void original tax bill. No notice was given of the attempted amendment or of the amended tax bill and therefore the suits are brought prematurely.

      Rodgers & Koerner and Hickman P. Rodgers for respondent.
    (1) To construe the charter to mean that.Church road was the next parallel street to the street improved, even though in the course of time other streets may be opened between them, is not contrary to the Constitution of the State of Missouri, or the Constitution of the United States. Granite Bit. Pav. Co. v. Fleming, 358 S. W. 4; Roofing Co. v. Fair Assn., 231 Mo. 589; Const. Co. v. Shovel Co., 211 Mo. 524; State ex rel. v. St. Louis, 211 Mo. 591; Collier Est. v. Paving Co., 180 Mo. 362. (2) The Street Commissioner’s plat prepared prior to the adoption of the improvement ordinance was for his convenience, and could not fix the boundaries of the benefit district. Granite Bit. Pav. Co. v. Fleming, 158 S. W. 4. The benefit district is automatically established by the charter, after the work is completed. Charter, St. Louis, art. 6, sec. 14. The only changes made in the physical situation between the time of the passage of the improvement ordinance and the issuance of the tax bills were made by appellants and for their benefit; and of these appellants should not be beard to complain. (3) Making allotments in partition and recording the allotment plat does not divide a tract of land into lots within the meaning of the charter provision requiring the assessment to their full depth of all lots fronting on the street improved. Collier Est. v. Pav. Co., 180 Mo. 385. (4) The appropriation in advance of the work of a greater sum than necessary to pay the city’s portion of the cost of an improvement, does not bind the city to pay more than its actual portion when ascertained, nor entitle property holders to an application of such excess to their portion of such cost. Perkinson v. Weber, 157 S. W. 961. (5) The courts will correct irregularities in amounts of special tax bills upon proper pleadings and proof, but will not declare same void on that ground. Defendants having tried the cases on the theory that the bills are void because excessive, are not now entitled to a reduction in amount even though the facts should warrant same. Neil v. Ridge, 220 Mo. 233. (6) The only notice to which appellants were entitled was that “of the issuance” of the tax bills. Charter, art. 6, sec. 25. The notice's herein were sufficient. 37 Cyc. 1019. (7) The defects, if any, in the original tax bills were mere irregularities in no way affecting their validity. Whatever may have been the effect of the tax bills in their original form, whether void or merely imperfect, they were subject to amendment. State ex rel. v. St. Louis, 183 Mo. 230; Riley v. Cranor, 51 Mo. 541; Vieths v. Planet Co., 64 Mo. App. 207; G-albreath v. Newton, 45 Mo. App. 312.
   WILLIAMS, C.

This is a suit upon a special tax bill in the sum of $14,522.65 and interest, issued by the city of St. Louis to the plaintiff contractor and against the property of defendants, as in part payment for the improvement of that portion of Broadway street lying between a line about 285 feet south of Pelham avenue and Hornsby avenue in said city. Trial was had in the circuit court of-the city of St. Louis, resulting in a judgment for plaintiff for the full amount with interest. Defendants have perfected an appeal to this court. By the St. Louis charter, it is provided that special assessments for street improvement shall be levied, one-fourth against the land fronting upon or adjoining the improvement and three-fourths proportionately against all the land lying within the benefit district to be fixed as provided by said charter. Said benefit district is established as follows:

“A line shall be drawn midway between the street to he improved and the next parallel or converging street on each- side of the street to he improved, which line shall he the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to he improved is divided into lots, the district line shall he so drawn as to include the entire depth of all lots fronting on the street to he improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no.parallel or converging street on either side of the street to he improved, the district lines shall he drawn three hundred feet from and parallel to the street to he improved; but if there he a parallel or converging street on one side of the street to he improved to fix and locate the district line, then the district line on the other side shall he drawn parallel to the street to he improved and at the average distance of the opposite district line so fixed and located. Provided that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in the lots, blocks or tracts of land lying between the streets to be improved and the district lines established as above specified, shall constitute the district aforesaid. . . . The word 'lot’ as used in this section, shall' be held to mean the lots as shown by recorded plats of additions or sub-divisions, but if there be no such recorded plat, or if the owners of property have disregarded the lines of lots as platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel of ground, or lots so treated as one, shall be regarded as a lot for the purposes hereof. ’ ’

Charter of the City of St. Louis, art. 6, sec. 14.

The property involved in the present tax bill is upon the west side of the improved street, having a frontage thereon of 1083.88 feet and extending westward to a depth varying from 327 feet to approximately 493 feet. The nearest public street west of the improved street, and also west of the land involved in this tax bill, is Church road, which is approximately 986 feet west of Broadway at this place.

Appellants make no claim that the work of said improvement was not properly done as provided by the contract and specifications, but seek to defeat • a recovery by reason of certain alleged irregularities in the fixing of the boundaries of the benefit district; in the issuance of the tax bill and the giving notice of its issuance. The different defenses pleaded may be briefly stated as follows:

1. That the assessment district fixed by said city was illegal and improper and not in conformity with the provisions of the city charter in this:

(a) A portion of the western boundary of said benefit district was placed half-way between Broadway and Church road whereas Church road was not a parallel or converging street to Broadway within the meaning of said charter. That in time this property will be intersected with other streets parallel and nearer Broadway; that if section 14 of article 6, of the charter of the city of St. Lonis, when correctly construed, authorizes the fixing of the western line of said district at the place it was in fact located in the instant case then said charter provision is illegal and void because of being in violation of section 1, article 14 of the amendments to the Constitution of the United States and sections 20 and 30 of article 2 of the Constitution of Missouri; that said portion of the west boundary of said district should have been located “at a distance west of Broadway equal to the average distance of the district line on the east side of the improved street” as provided by the charter when there is no parallel or converging street on one side of the improved street; that if the western district line had been drawn a distance from Broadway equal to the average distance of the opposite.boundary line it would have been much closer to Broadway and would have omitted from the assessment district a large portion of the property included in said tax bill.

(b) That the eastern boundary of the district should have been extended so as to have taken in the entire depth of lots “H” and “I” of the subdivisions of Cimblin’s estate fronting upon the east side of the improved street, because the same are lots within the meaning of the charter. (Note: This would have enlarged the benefit district and decreased the amount of defendant’s tax.)

(c) At the time of the passage of the ordinance authorizing the improvement, a street then known as Hornsby avenue ran about 150 feet parallel with the northern end of the improved street. That before the improvement was finished this short parallel street was vacated and another parallel street about 155 feet farther west was opened by extending Church road northward and that the western boundary line of the district at this place was fixed half way between Broadway and the new extension of Church road instead of half way between Broadway and Hornsby avenue as it existed at the time the ordinance was passed. (Note. This had the effect of taking more land into the assessment district but land other than that involved in the present .tax bill.)

2. That the ordinance providing for the improvement and the issuance of special tax bills in payment therefor was in part as follows:

“The total cost of the foregoing work and all proper connections and intersections required (except so much thereof as the railway company having tracks on said street is by law obligated to pay, and except, further, so much thereof as is provided to be paid by the city of St. Louis by section 5 of this ordinance) shall be ascertained and be levied and assessed as a special tax upon all the property within a district defined and bounded by section 14 of article 6 of the charter of the city of St. Louis.
“Section 5. Whereas,in the district aforesaid there is located St. Louis water works property' of the city of St. Louis which is not liable to special assessment, and, whereas, the proportion of cost of the aforesaid improvement which would have been assessed against said property of the city were it not exempt from the assessment, amounts to $17,168. There is hereby appropriated and set apart out of real estate account for city’s proportion of cost against property of the city for reconstructing and improving streets, alleys or sidewalks said sum of $17,168 to. pay for the city proportion of said cost.”

That the amount finally paid by the city on property included in the district exempt from special assessment was $7947.78, instead of $17,168, the amount appropriated, and that by reason thereof the remainder of the property in the assessment district had to pay approximately $10,000 more in special tax than contemplated and provided by said ordinance and that by reason thereof said tax bills including the one in suit were rendered illegal and void.

3. That the contract which plaintiff entered into with the city for the performance of said work pursuant to the terms of said ordinance provided that the “property in the benefit district exclusive of the property belonging to the city, should only be charged with the difference between the total cost of said improvement,” to-wit, $42,291.52 and the sum to be paid by the city authorities, to-wit, $17,168', but that the city authorities • failed to deduct said sum of $17,168, before assessing the assessible property in said district, and that by reason of said ordinance and contract plaintiff is estopped to claim that special tax bills could be issued by the city for more than the sum of $42,291.52 less said $17,168, and that by reason of such error the said tax bill is illegal and void.

4. That said tax bill is void because it did not describe with sufficient certainty the property against which it purported to be issued; and thát said tax bill was never amended in any manner provided by law.

5. That no notice of the issuance of any special tax bill against the property referred to in the amended petition was ever given to defendants.

There is little, if any, dispute as to the controlling facts. Such additional facts as shall become necessary to an understanding of the legal questions involved will be stated in connection with the discussion of the respective points.

I. It is contended that that portion of the western boundary of the benefit district affecting the property involved in the present tax bill was erroneously fixed one-half way between Broadway and Church road and further that if the charter of St. Louis be construed to' authorize the fixing of the boundary line in such manner then said charter provision is in conflict with the Fourteenth Amendment to the Constitution of the United States and with sections 20 and 30 of article 2 of the Constitution of Missouri.

The undisputed facts show that Church road, which is approximately 900 feet distant, is the nearest parallel street to that portion of the improved street upon which the land involved in the present tax bill fronts.

The point here raised has been fully discussed and directly passed upon by this court in a number of decisions. No present reason appears why the subject should again be discussed at length, but for the purpose of the present case, it is sufficient to say that the rule has become firmly established by former opinions of this court to the effect that the charter of St. Louis does provide for the fixing of the boundary line of the benefit district as the same was fixed at the place above mentioned in the case at bar, and that such charter provision does not conflict with any of the above-mentioned constitutional provisions. [Granite Bituminous Paving Co. v. Fleming, 251 Mo. 210; Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 589; Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 524.]

II. It is further contended that the benefit district should have been extended so as to have taken in (to their full depth) certain parcels of ground owned by the city and occupied by its water works plant; said property fronts upon the improved street and is described as lots “I” and “H” of H. Gimblin’s estate in partition. Each of said parcels of ground contains about thirteen acres of land and has a depth of about 1400 feet extending eastward from the improved street. From the evidence it appears that there was no parallel or converging street east of that portion of the improved street upon which this property fronts. The district fine at this place was drawn parallel with and a distance of 240 feet from the improved street; said 240 feet being the average distance of the district line on the opposite side of the street. If the two above-mentioned tracts of land are “lots” within the meaning of the city charter, then the district line should have been extended so as to take in the full depth thereof. This would have greatly increased the area of the benefit district and therefore have greatly reduced the amount of tax assessed against the land involved in the present tax bill. If, on the other hand, said tracts of land are not “lots” within the meaning of the charter, then the district line was properly located. The tracts of land marked “I” and “H” were formerly a part of the H. Gimblin’s estate or farm. After said Gimblin’s death his estate, consisting of several acres, was partitioned. Commissioners in partition divided the estate into ten separate tracts of land, designating the separate tracts upon a survey by letters respectively from “A” to “K,” both inclusive. These separate divisions varied in size, ranging from about four acres to about forty-eight acres and the separate parcels were allotted to the respective parties in partition. A survey was made of the division of the estate and the survey or plat accompanying the commissioner’s report in partition was recorded in the office of the recorder of deeds of St. Louis county. There is nothing to show that said plat was ever approved or accepted by the board of public improvements of the city of St. Louis. We think it clearly apparent that said tracts of ground are not “lots” within the meaning of the charter, and that therefore the district line at that place was properly located. In the case of The Collier Estate v. Western Paving & Supply Company, 180 Mo. 362, l. c. 385, where a situation similar to the one in the case at bar was involved, the court in Banc, speaking through Gantt, J., said: “As to the claim that this tract was divided into lots and the plat recorded, because in the partition suit portions of it were allotted in the survey and these allotments recorded with the commissioner’s deed, we think it is untenable. There is no pretense that such allotment plat was approved by the board of public improvements and recorded in the plat books in the recorder’s office:"

III. It is urged that the tax bill is void by reason of the location or fixing of that portion of the western boundary line which extends southward a distance of approximately 240' feet from the northwest corner of the benefit district. At the time the ordinance authorizing the improvement was passed, Hornsby avenue ran parallel to Broadway at this point. While the work was in’progress and before the work was completed, Hornsby avenue was vacated and Church road was extended northward so that at the close of the work this extension of Church road was the next parallel street along this portion of the improved street. This extension of Church road was approximately 150 feet farther west of«Broadway than wag Hornsby avenue. The district line at this place was placed one-half way between Broadway and this extended parallel portion of Church road, thereby including in the benefit district a strip of ground about 70' by 240 that would not have been included in the benefit district had the district line at this point been fixed half way between Broadway and the next parallel street existing at the time the ordinance was passed. This strip of ground thus taken into the benefit district was no part of the land against which the present tax bill was issued. This being true, defendant, so far as his property is involved in the present suit, was henefitted and not harmed by reason of the boundary line being fixed where it was. Three-fourths of the cost of t]ie improvement is assessed proportionately against the area of all the land in the benefit district. The larger this benefit district the smaller the assessment per square foot. The fixing of the district line as it was fixed had the effect of bringing more land into the district, therefore the land in the present tax bill was assessed for a less amount than if the line had been fixed at the place contended for by appellants. Under such circumstances, appellants should not be permitted to urge such irregularity against the validity of the present tax bill, but that question should be left for determination in the suit involving the validity of the tax bill embracing that particular tract. The suit involving the validity of the tax bill embracing that particular tract is now under submission in this division of the court and that point will be discussed therein.

IY. The ordinance authorizing the improvement made provision for an appropriation of $17,168' out of the real estate fund of said city, with which to pay the city’s proportion of the cost of said improvement. The charter provided “that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property.” In the case at bar the amount to be paid by •the city could only be determined by the amount of the city’s property which was properly included within the benefit district. The district boundaries were fixed automatically by the charter. An ordinance could not add to or take from the benefit district. [Collier Estate v. Western Paving & Supply Company, supra, l. c. 375.]

The purpose of the ordinance in the respect here discussed was to make an appropriation out of which the city’s proportionate part could be paid. The fact that the ordinance appropriated $17,168 with which to pay its proportion could in no manner obligate the city to pay that amount unless the city’s legal share in fact equalled that amount. When the work was completed and the city authorities were ready to issue the tax bills it was ascertained that the city’s correct proportion was $7994.78. The appropriation of $17,-168 was made by the municipal assembly, evidently under the mistaken idea that the benefit district would extend to the full depth of tracts “I” and “H” owned by the city. The identical point here raised was passed upon by this court in the case of Perkinson v. Weber, 251 Mo. 186. In that case, Brown, P. J., speaking for the court, said: “The appropriation mentioned turned out to be more than a thousand dollars larger than was necessary to cover the city’s part of improving Twentieth street, but that did not harm defendants in any way. . . . Because the municipal assembly acted with abundant caution in appropriating a larger sum than was necessary would constitute no warrant for spending the surplus of that appropriation in paying special taxes on property of defendants or other private persons. All of the costs . . . which were legally chargeable against the city of St. Louis were paid out of the appropriation, and the contention of defendants that the remainder of said appropriation should have been applied on said improvements must be disallowed.”

It is further insisted by appellants, however, that-the ordinance in appropriating a certain amount with which to pay the city’s portion thereby limited the amount for which special tax bills could be issued against private property in the district to the difference between the total costs and the amount so appropriated. We are unable to agree with this construction of the ordinance. Section 4 of the ordinance in providing for the issuing of special tax bills to pay for the total cost of the improvement (less the amount to be paid by the street railway company and the amount to be paid by the city by section 5 of the ordinance) expressly states that the benefit district contemplated by the ordinance is the district as fixed by section 14, article 6 of the charter. And by providing for deducting from the total cost the amount to be paid by the city as provided by section 5 of the ordinance (said section 5 not fixing the city’s liability but only appropriating to pay its proportion as fixed by the district under the charter) said ordinance should not be construed to mean that the legal amount assessable against the remainder of the property in the benefit district should be less than its legal share. It is true that it was necessary that the ordinance make an appropriation for paying the city’s part but this provision can not fix the city’s proportionate part. It can only provide the funds out of which the city’s proportionate part (otherwise fixed) can be paid. What is said in this paragraph as to the construction to be placed upon said ordinance will also apply to the construction to be placed upon the contract between the city and the contractor which contract was based upon the ordinance.

Y. The charter provides that tax bills “may be collected of the owner of the land and in the name of and by the contractor, as any other claim in any court of competent jurisdiction, wibfi interest at the rate of six per cent per annum after thirty days notice of its issuance as hereinafter provided. ... It shall be the duty of the city marshal, at the request of the holder or owner of any tax bill issued under this charter, to serve upon the party or parties named in such tax bill a notice of the issuance thereof,” etc.

Pursuant to the above provision for giving notice, and in due time, the contractor caused to be served upon the defendant named in the tax bill the following notice:

“SPECIAL TAX BILL NOTICE.
“Cast Realty & Investment Co. — Owner.
“You are hereby notified that special tax bill No. 17961 for $14,522.65', date Feb. 8,1909', has been issued to Schneider Granite Co., Contractors, under ordinance No. 23137, contract No. 8105, for work done on Broadway between a line about 285 feet south of Pelham avenue and Hornsby avenue, and chargeable against property described in said special tax bill as follows:
“Lot No. — in city block No. Yol. 1, pa. 64, said ground having an aggregate front of 1085.71 feet, by 327.18 1083.88 a depth of 418.92 feet, bounded north by Hornsby avenue, east by Broadway, south by alley et al. and west by Luedinghaus, Jr., et al.
“This bill is payable as provided by Section 25, Article YI, of the City Charter, and the Lafayette Bank, Broadway and Merchant St., has been designated as the place of payment thereof, where payment of the bill in full may be made without interest within thirty days after service of this notice; otherwise, in accordance with said section and article.
“Payment thereof is now demanded.
“Schneider Granite Co., Contractors.
“ByB.”

It is contended that the above notice is insufficient by reason of the fact that the property is not correctly, and completely described. It is true that the property is not fully described. However, the purpose of the notice is to inform the person named in the tax bill of the “issuance thereof,” so that he may pay the same without interest at any time within thirty days after receiving said notice. The description given says the property is bounded on the north by Hornsby avenue and on the east by Broadway. The same could not be said of any other piece of property in the city. However, the charter does not provide that the notice shall contain a description of the property. The description given in the present notice was sufficient to apprise the owner that it was his land against which the tax bill was issued. The notice gave the date of the tax bill, its amount, and the number of thé ordinance and contract authorizing the work and also designated the street improvement for which the tax bill was issued and stated at what bank the tax bill was payable. We cannot conceive how appellant could have been misled in any way or how its rights could have been impaired by reason of any information which the notice failed to impart. It gave sufficient information of the “issuance” of the tax bill and was a sufficient compliance with the charter provision as to such notice.

After the above notice was given, defendant Emily Gast became the record owner of a small portion of the property against which this tax bill was issued. And later the tax bill was amended by giving an accurate description of-the property by metes and bounds and by adding the name of Emily Gast as owner. No notice was ever given said Emily Gast. But the charter makes no provision for notifying subsequent purchasers of the property of the issuance of the tax bill but only provides for notice of its issuance to be given the person named in the tax bill at the time- the notice is given.

VI. The tax bill was issued February 8,1909, and the above notice of its issuance was served upon appellant corporation March 3, 1909; on December 17, 1909, the tax bill was amended by correctly describing the property by metes and bounds and by adding the name of appellant Emily Gast, who had become the record owner of a portion of the land after the issuance of the tax .bill. This suit was instituted afterwards and'is based upon the amended tax hill. This amendment was made and indorsed by the same city authorities that issued the original tax bill.

It is well settled in this State that irregularities occurring in the issuance of tax bills may be corrected by amendments thereto made by the same persons who originally issued the same. [Morley v. Weakley, 86 Mo. 451; Stadler v. Roth, 50 Mo. 400; Vieths v. The Planet Property & Financial Company, 64 Mo. App. 207.] Said amendment was not only permissible under the authorities but it was a very proper and necessary step for the purposes of the tax lien and the regularity of a possible sale of the land under a judgment rendered thereon.

The judgment is affirmed.

Roy, G., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


text:
    THE SCHNEIDER GRANITE COMPANY v. GAST REALTY AND INVESTMENT COMPANY, Appellant.
    Division Two,
    June 23, 1914.
    Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.
    Affirmed.

      Johnson, Rutledge <& Lashly for appellant.

      Rodgers é Koerner and Hickman P. Rodgers for respondent.
   WILLIAMS, C.

The controlling facts of this case are in every particular substantially the same as those involved in the case of The Schneider Granite Company v. Gast Eealty & Investment Company and Emily Gast, decided by Division Two of this court at the present term and reported at page 153, ante. The conclusions reached in that ease are controlling in this and for the reasons therein stated it is ordered that the judgment in the present case he affirmed.

Boy, C., concurs.

PEE CUEIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: WALKER, P. J.

text:
    JOHN C. ROGERS, Appellant, v. WILLIAM C. JOHNSON.
    Division Two,
    June 23, 1914.
    1. EJECTMENT: Judgment: Suspension of Limitations. A valid subsisting judgment in ejectment against one in possession and claiming adversely to the plaintiff therein interrupts the peaceable possession of such defendant, and suspends the running of the Statute of Limitations in his favor.
    2. -: -: -: Application of Rule. But said rule will apply only to the defendant in said suit, unless the defendant in a subsequent ejectment is shown to sustain some relation of privy to the defendant in the former suit, such as that of a purchaser with knowledge or as tenant.
    Appeal from Greene Circuit Court. — Hon. Alfred Page, Judge.
    Artirmed.

      G. A. Watson for appellant.
    (1) A judgment in ejectment is conclusive, as Long as it remains in force, upon the parties and their privies whether writ of restitution issues or not. Snell v’. Harrison, 131 Mo. 503; Estes v. Nell, 140 Mo. 650; Sanford v. Herron, 161 Mo. 184. The Act of 1895 (now Sec. 1912; R. S. 1909) did not affect a judgment rendered prior to the taking effect of that act. Laws 1895, p. 221; R. S. 1909, sec. 1913; Cranor v. School District, 151 Mo. 119; MePanl v. Haley 166 Mo. 63; Tice v. Ewing, 173 Mo. 55. (2) W. C. Johnson is the privy of Gr. "W. Johnson within the meaning of the above decisions. Long v. Coal Co., 233 Mo. 713; Satterlee v. Bliss, 36 Cal. 514; Bonghten v. Hardee, 46 App. Div. (N. T.) 352; 6 Words and Phrases, p. 5609.

      Patterson & Patterson for respondent.
    (1) The fault with appellant’s contention to the effect that “a judgment in ejectment is conclusive, as long as it remains in force, upon the parties and their privies whether writ of restitution issues or not,” is that the doctrine has no application to this case. This suit in ejectment is not an action on plaintiff’s judgment in ejectment recovered against defendant’s grantor in 1895. It is an action based on the same right upon which the said judgment of 1895 was recovered. Plaintiff’s said judgment of 1895 conferred no title upon him. That judgment is now dormant and the only right it confers upon plaintiff is the right to bring suit upon the judgment to recover a new judgment. And this suit in ejectment is not such a proceeding. If this were a suit upon the judgment of 1895 to recover, a new judgment in ejectment then there might possibly be some color of merit in plaintiff’s contentions under this head. R. S. 1909, sec. 6020; Goddard to use v. Delaney, 181 Mo. 571. (2) Plaintiff’s contention to the effect that “W. C. Johnson is the privy of G. W. Johnson within the meaning of the above decisions ’ ’ is also beside the case. The doctrine of privity does not prevent the ten year Statute of Limitations from running in favor of the plaintiff either before or subsequent to the judgment of 1895. (3) The defendant has acquired title to the fifteen acres in controversy under the doctrine of adverse possession by reason of the fact that his grantor George W. Johnson was in the continuous, open, notorious, actual, exclusive', adverse possession of said land under claim, of right from 1884, the date of the administrator’s deed to Lee Holland, for more than ten years prior to the institution of the ejectment suit under which plaintiff recovered judgment against George W. Johnson, defendant’s grantor in 1895. The case of Kimmel v. Benna, 70 Mo. 52, the'leading case in Missouri on the law of ejectment, is authority for the doctrine that a defendant can avail himself of title by adverse possession acquired prior to a judgment in ejectment in favor of plaintiff’s grantor and against defendant in a subsequent suit in ejectment between .plaintiff and defendant. (4) The defendant has ae-' quired title to the fifteen acres in controversy under the doctrine of adverse possession, because of the fact that the defendant and his grantor George W. Johnson was in the continuous, open, notorious, actual, exclusive, adverse possession of said land under claim of right from 1884 to 1909, the time of the institution of this suit in ejectment, the said judgment in ejectment of 1895 in favor of the plaintiff and against George W. Johnson, notwithstanding, for the reason that the said judgment was not enforced by writ of restitution and cannot now be so enforced, more than ten years having elapsed since its rendition. Barrel v. Title G. & T. Co., 39 Pac. 996; Dunn v. Miller, 75 Mo. 560; Leo v. Eeynolds, 27 Ala. 364; Smith v. ITornback, 4 Litt. (Ky.) 322, 14 Am. Dec. 322; Jackson v. Haviland, 13 Johns. (N. Y.) 229; Forbes v. Caldwell, 39 Kan. 14; Smith v. Trabue, 1 McLean (U. S.), 87; Moore v. Greene, 19 How. 71; Barry v. Otto, 56 Mo. 177; Eidgeway v. Holliday, 59 Mo. 444. (5) A judgment in ejectment never affects an after acquired title. And a defeated party may, therefore, prove that the right to the possession has come to him since the determination in the former suit. Freeman on Judgments, sec. 302; Mahoney v. Van Winkle, 33 Cal. 448; Emerson v. Sansome, 41 Cal. 552; Foster v. Evans, 51 Mo. 39.
   WALKER, P. J.

Ejectment for the possession of fifteen acres of land in Greene county, Missouri, described as five acres off of the west side of the southwest quarter of the southwest quarter of section 8, and ten acres off of the east side of the southeast quarter of the southeast quarter of section 7, all in township 28, range 20.

This suit was commenced in the circuit court of Greene county in 1909. Upon a jury being waived, the issue was tried by the court, and a judgment rendered ' in favor of the defendant, from which the plaintiff appeals.

In 1895 plaintiff obtained a judgment in ejectment against one George W. Johnson, a brother of defendant, who resided in Montana, for the above-described land, but plaintiff never exercised any acts of ownership in regard to same except to pay the taxes thereon for the year 1898, and one previous year, the taxes for twelve other years prior and subsequent to 1898 being paid by the defendant. At the time the taxes were paid by plaintiff, the defendant was in possession of the property and had been prior thereto. It is evidently the contention of the plaintiff, although there is no direct evidence to that effect, that before the rendition of the judgment in ejectment in favor of plaintiff against George W. Johnson, defendant’s possession was that of a tenant of said Johnson.

In 1898 defendant purchased the land in question from George W. Johnson, but did not receive a deed thereto until 1901, which deed was offered in evidence, but had not been recorded. Defendant contends that prior and subsequent to the date of said purchase his possession was open, adverse, hostile and continuous; that he never knew of plaintiff’s claim to same and had no knowledge of the latter’s having obtained a judgment for said land against his brother in 1895. An effort was made to show that plaintiff had a writ of restitution issued following his obtaining of the judgment aforesaid, but this claim had no other foundation than his own testimony; testimony from the same source was offered in an attempt to show that the defendant was a privy to his brother George W. Johnson, and that defendant had acknowledged the ownership of plaintiff in the property; this testimony was at variance with the other facts in evidence and the court found adversely to plaintiff’s contention relative thereto.

Plaintiff insists that his judgment against George W. Johnson in ejectment is conclusive as to his right of possession in said property as long as it remained in force, and that it was not necessary so far as its effect is concerned upon the party against whom it was rendered and his privies that a writ of restitution be issued to suspend the running of the statute.

The principle is well established that a judgment in ejectment against one in adverse possession breaks the continuity of such possession, and the adverse possession of the plaintiff in the ejectment proceeding dates from the judgment, when'he is in law invested with the possession.

The rule as originally announced in this’ State was that the mere recovery of a judgment in ejectment would not suspend the running of the Statute of Limitations in favor of him against whom it is rendered; that in order to have that effect possession must be taken under the judgment or something done to make the defendant’s possession subordinate to the plaintiff’s title. [Mabary v. Dollarhide, 98 Mo. 198.] However, this court in Banc in Snell v. Harrison, 131 Mo. 495, held that a valid, subsisting judgment in ejectment against one in possession and claiming adversely interrupted the peaceable possession of the defendant and suspended the running of the statute in his favor, thus overruling Mabary v. Dollarhide, supra, so far as it announced a different doctrine. The rule as thus announced has since received the unqualified approval of this court in the cases of Estes v. Nell, 140 Mo. 639, and Sanford v. Herron and Uhri, 161 Mo. 176.

The application of the rule here, however, must, under the evidence, be limited to George W. Johnson, the defendant in the suit brought by plaintiff in 1895, as there is no evidence, despite the relationship of the parties, upon which to base the conclusion that the defendant in the instant case was his privy. Without any knowledge whatever of the judgment in plaintiff’s favor, and so far as the record discloses, in perfect good faith, defendant bought, for a valuable consideration, from George W. Johnson the title to the property in question; in this purchase the conclusion is evident that his intention and purpose was, in addition to his adverse occupancy, to acquire a paper title. It is true that he did not receive a deed in consummation of this purchase until 1901, but during all the time that elapsed from 1898 to the date of the receipt of the deed he was living on the land, and exercising all the acts of dominion incident to ownership, and so continued thereafter. During this time and subsequent thereto, plaintiff did not in any manner attempt to interfere with defendant’s possession, nor assert his claim to the land except to pay the taxes for the two years as stated.

Under our view of this case we need not discuss the question as to whether or not the ten-year Statute of Limitations in regard to the presumption of the satisfaction of a judgment under section 1912, Revised Statutes 1909, is applicable, because defendant’s possession had ripened into a-title before the institution 'of the suit herein by plaintiff. Wé hold, therefore, that the defendant’s possession was adverse, hostile, open, notorious and continuous before and from the date of jhis purchase from George W. Johnson and continued up to the time the plaintiff brought this suit, and that under such possession defendant has acquired title.

The judgment of the trial court should, therefore, be affirmed, and it is so ordered.

Brown and Paris, JJ., concur.