
    Union National Bank of Springfield, Respondent, v. George H. Mobley et al., Appellants.
    78 S. W. (2d) 512.
    Springfield Court of Appeals.
    December 24, 1934.
    Kehearing denied February 4, 1935.
    
      
      Alfred Page and Val Mason.for appellant.:
    
      Coltraine & Coltraine -for. respondent.:.
   BAILEY, J.

This is an action for the enforcement of the lien of two special and separate tax bills, issued by the City of Springfield-, against certain real estate, for public improvements. The first one was issued in payment for pavement upon the roadway of Broadway Avenue from G-rand Street south to Oak Street in the City of Springfield. The second was issued in payment-for -the construction' of concrete curbing upon the same-street: The proceedings leading up 'to the two improvement's are of the same date and likewise the' property involved is' the same. The petition was in two counts, but the issues involved are identical. There is no controversy in regard to the facts, which are stated in respondent’s brief, in part, as follows:

‘ ‘ The petition is in the usual form. •
“The lien is sought to be enforced against a sixteen-acre tract of land owned by- John Mobley until the date of his death, June 15, 1930, and since that time by his devisees. Broadway, the street improved, runs' along' the west side of this sixteen-acre- tract. The answer of Helen-Grosskreutz alleges that on June 15, 1930, prior to the issuance of the tax bills in question, John Mobley devised a tract 125 feet square in the northeast corner of said sixteen-acre tract to her, and that as this 125 foot tract did not adjoin Broadway Avenue at the time the special tax bills were issued, it was not abutting property and therefore was not subject to the lien of the' tax bills.
‘ ‘ The evidence shows that ■ on April ll, 1930, the City 1 Council passed a resolution declaring the improvements' for which said tax bills were issued necessary. No protest was filed,' and on' April 29, 1930, an ordinance-was passed ordering the construction ■ of concrete paving and integral curbing on said- Broadway Avenue: from Grand Street • to Oak • Street, a distance - of 2152 feet. Said- sixteen-acre tract had a frontage of 1226 feet on the improvement. On June 15, 1930, John Mobley died leaving.a will in which.he gave the above described 125 foot strip to appellant. This-125 foot tract included the-.dwelling house and all valuable improvements on the-land. :The ■regularity of the proceedings up;to the date of the death of John Mobley is not questioned. ’•
' ‘ ‘ The sixteen-acre tract, including said .125 ■ foot strip, • owned by .John- Mobley', abutted on the above mentioned part of Broadway Avenue at the-date of 'this resolution* and of this ordinance, both of which were passed before this death. The contract for- both the curbing and paving was let to F. X. Baron on May 9, ■ 1930; and his contract with, and -bond to, the City entered into on that date. In this contract, the City agreed to pay the contractor, in tax bills against ■the.property abutting on said Broadway Avenue along the distance to be improved in'proportion, to the front' foot thereof. .The contractor commenced the work and had done a considérable part thereof prior to June .15, 1930, the date John Mobley died. An ordinance directing the issuance of the tax bills was passed .by the city council on July 9, 1930, and-the two bills in question was issued. - Thereafter, the tax bills were assigned to the Union National Bank, the respondent herein.
“The appellant, Helen Grosskreutz, seeks to hold exempt from the-lien of the tax bills the 125 foot tract, which she took under the will of John Mobley. Appellant’s contention is that the devise of this land after the preliminary proceedings were taken and. the work commenced, but before the special tax bills .were- issued exempted or freed the said tract in the northeast ■ corner'of said. sixte'en-acré tract devised to appellant from liability for the payment, of any part of the cost of said improvement. , Respondent’s contention is, and the trial court so found, that the- resolution declaring the improvement necessary and the. ordinance authorizing the, work having been passed, and -the contract and bond, having been entered into, and -the work partly performed before Mr. Mobley ’s death, a-change in the ownership of any part of .said sixteen-acre tract would not relieve the part of the land transferred from liability. ”

The trial court found the issues in favor of plaintiff and rendered its judgment accordingly. Defendant, Helen Grosskreutz is the sole appellant. .While several assignments of error, are contained in defendant’s brief there 'is in fact but one point-involved, namely-that the trial court erred in holding that the tract 125 feet square in the northeast corner of: the sixteen-acre tract, devised to Helen. Gross-kreutz, was not exempt from the lien of the.-special tax bills for the costs of- the improvements in question. •

Defendant Helen. Gxosskreutz bases ber contention that the lien of the: special tax bill did' not attach to the tract of land devised to . her by her father, upon the ground that. the. lien thereof,. under the statute, did not attach until the tax bills for the improvements were issued and that since her father died and his will became'effective some twenty-four days, before the tax bills were issued, .no lien attached, to-her, property, which does not abut upon the improvements. The statute authorizing the city to issue special. tax bills against property assessed for public improvements provides among other things that, “Every such special tax bill shall .be a lien against the property therein described from the .date of-its issuance, which lien, shall continue for a period of six years thereafter.” •• [Sec. 6652, R. S. Mo. 1929.] There can be no question'that" by-the terms of this .statute the-lien of the special tax bill does not-become effective until its issuance. [Anderson v. Holland, 40 Mo. 600; Clapton v. Taylor, 49 Mo. App. 117; Everett v. Marston, 186 Mo. 587, 85 S. W. 540; Seibert v. Copp, 62 Mo. 186; Eagle Manufacturing Co. v. Davenport, 101 Iowa, 493, 70 N. W. 707; 44. C. J. 803, sec. 3412; 25 R. C. L. 187, sec. 100.]

.Plaintiff in its brief does-not dispute this rule of law based upon the statute, but says, ‘ ‘ we do not claim, that the lien attached before the special tax bill was issued, but we do say that changes of ownership in the land after the resolution- declaring the work necessary had been passed and the contract for the improvement had been entered into with the contractor, it did not lie within the power of the owners to increase or decrease the amount of land that. would be liable for the expense of the improvement.” There are; a number of. cases cited in support of that proposition, [among them being, Dougherty v. Miller, 36 Cal. 83; Douglass v. Cincinnati, 29 Ohio St. 165; In re Elizabeth Com’rs., 49 N. J. L, 488, 10 Atl. 363; City of St. Louis v, Meier, 77 Mo. 14; Stifel v. Brown, 24 Mo. App. 102; Stumpe v. City of Washington, 54 S. W. (2d) 731.

The three Missouri cases cited are-bottomed on' the 'theory that, a conveyance of. a narrow strip of land abutting upon the improvement made after the work has commenced but. before the assessment is actually authorized or the tax bills issued, for the sole purpose of avoiding the assessment as to the remainder of the land, is fraudulent and void, being a mere sham and therefore, of no effect. We find no Missouri case which holds for or against the; proposition that a conveyance made without the earmarks of fraud, but for a legitimate purpose, must be considered as void in so far as the assessment is concerned, although the effect of such conveyance might be to remove from the lien of the tax bills, issued in payment- of the improvement, a.-.considerable and valuable portion of the .land that'was, at the time of the passage of ordinance declaring the improvement necessary, subject to .the assessment. It is with, such a situation we' must deal it the present ease. ' There is no charge of intentional fraud. The will under whieh defendant - Helen Grosskrentz' claims title to' part of the original tract- abutting upon the improvements, was ■ executed shortly before ' the •• City Council of Springfield commenced proceedings for the •iMproveMents'.-■ The testator died between the time the. contract wasdeti'and the tax bills were issued. The question then is whether-land constituting a part of-a tract abutting upon an improvement, conveyed to a third person before the'issuance of the tax bills creating the-lien, but after the enactment of an ordinance authorizing the improvement,' is nevertheless subject to assessment for the same, where no element of-fraudulent intent is shown to exist.

In the ease of Everett v. Marston, 186 Mo. 587, supra, a suit was brought for the specific performanceof a contract in which the vendor agreed to convey the - property free of all liens and encumbrances of-every kind. The question arose as to whether or not special tax bills for improvements on a street abutting the property were a lien or incumbrance against the property involved in the contract. At the time the contract was entered into work had been commenced upon the improvement but the tax bills had not been issued. The Supreme Court, after reviewing á number of decisions, held- that, “the implication of an encumbrance-from-the general scope of the charter provisions for- the payment of - special improvements cannot be upheld in the-face of positive statutory -or charter provisions fixing the-date of-the commencement of the lien. ” .- . ■; “Our conclusion is that the-covenant in the contract to make a deed free from liens and encumbrances did not-obligate the defendant to pay these tax bills which were -neither liens nor' encumbrances when the - contract was made, and the-liability relates to the date of the contract whieh •fixed the rights of the parties.” [1. c. 602-3.] This case, as well as other Missouri cases cited by defendant, do not, in our opinion, reach the point here involved. ■ The question of what property is subject to the assessment for the improvement -is not discussed. We agree with plaintiff that a distinction should be made between the property subject to-the -lien 'of-the tax bill and the date 'when the lien itself attaches. • In the Everett case there was no holding that the property involved in the c'ontract was -not subject to the special tax bill, but on 'the contrary thé point decided was whether the vendor or vendee-should pay the tax under the contract of purchase.

We have reached the-conclusion'that property abutting upon an improvement at the time the improvement is authorized, should be held' subject to the lien of the special tax bill thereafter issued upon completion of the improvement} irrespective of any subsequent conveyances by which-a-part of such abutting property, all of which was originally assessable, may have been conveyed to'another. We may suppose, for example, that -the owner of abutting property conveys the whole'tract -to-an innocent purchaser after the improvement is commenced but before tbe special tax bill is issued,, and that such conveyance is made for a legitimate purpose, with no charge of fraud. We -think no one would say such property could escape the lien- of the special tax bill afterward issued, although the lien; had not; attached at the time of the conveyance. The same is true when a -small strip is sold off the front of the property for a fraudulent purpose, as we have heretofore observed. ■: It therefore follows-that; the time when the lien of the special tax bill becomes effective does not decide what property shall be subject to the lien. The date when the -lien becomes effective, fixed by statute, governs only questions which might arise-as to priorities, warranties, covenants, statutes-of limitation and the like, but was never intended, we think, to permit-property originally subject to the lien of the special tax bill to escape-its'just burden by conveyances acl interim-. [44 C. J. 592, sec. 2996.] This holding is in apparent conflict with a part of the holding in the case of Eagle Manufacturing Company v. Davenport, 101 Iowa 483, 70 N. W. 707, cited by defendant; in which it was held that the conveyance of a two-foot strip made after the letting of a contract for paving a street upon which such strip abutted, for the purpose of avoiding the paving assessment on the balance of the property, was void for the purpose of the assessment; but that the sale.thereafter of another portion of the tract involved, adjoining, the strip, for a legitimate purpose, was not void. It was further held,’ however, that because the grantee in the latter deed had a guilty knowledge as to the purpose of the previous conveyance, he took with notice and therefore the land was subject to the lien of the assessment. The decision is based entirely on the question as tp whether or not the conveyances ■were fraudulent. We say the result'‘is the same in either ease. It is obvious that when a contract is let for a public improvement, as here, reliance is placed upon the fact that certain property abutting the improvement stands good for. the cost thereof, and we are unwilling to agree that ány of such property'may be .relieved of its proportionate share of the burden.-by subsequent conveyances, whether in good faith or otherwise. In Dougherty v. Miller, supra, the' Supreme Court of California said:

“It may be true, as respondents’ counsel suggests, that a party may sell out his land for the purpose Of avoiding, the payment’ of assessments; but, if this be so, the assessment, if ..regularly made, will still attach itself to the land into whosesoever hands it may go, and payment must be made out of the proceeds of a sale if 'the party who ■succeeds to - the ownership -.declines; to pay- it' himself, - We' -are of opinion that' when a party enters'into a-legal contract-to improve 'a .street,, he thereby acquires a, right under, his , contract to .'have the assessment for the expenses-of-the work when completed made-upon .the lots fronting on the improvement as they existed at the- time the jurisdiction of the'board of supervisors over the subject-matter attached under the statute, and that the. owner of 'a lot can no more defeat this right as to' a large and really the only valuable portion of the lot by subsequently conveying a narrow strip bordering on the improvement, than he can be conveying the whole as a single lot to. another-party.- The whole lot-as it-existed when the jurisdiction of-the board of ■ supervisors attached is liable to-be assessed upon the: completion'of'the work, no matter who owned it or- what subdivisions, fraudulent, fanciful, or otherwise, may subsequently have been made by the owner.” • [36 Cal. 83.]

To the same effect is the case of Douglass v. Cincinnati, supra.

We think'the reasoning in- these cases sound and agree with the conclusions, reached. -The judgment-is accordingly affirmed.

Allen, P. J., and Smith, J., concur.  