
    In re Paseo.
    Kansas City Court of Appeals,
    February 6, 1899.
    Eminent Domain : title to condemned property: lien for special improvements: Kansas CITY oharter. While under the charter of Kansas City title to condemned real estate remains in the owner until the damages are paid, yet the divestiture on payment relates to the date of the judgment confirming the verdict of the jury and special improvements between the date of the verdict and the date of the payment form no part of the value of the land under the assessment of damages, and the tax bills therefor did not constitute a lien before the judgment of condemnation and can not be recouped out of the damages.
    
      Appeal from the Jaclcson Circuit Court. — Hon. E. P. Gates, Judge.
    Aebtrmed.
    
      Amos BE. Kagy and J. H. Bremermann for appellant.
    It is difficult to see how there can be contention about this matter; the facts are undisputed and the law is in plain print. "Unless the title to the Scarritt property was divested out of the Scarritts, November 14, 1896, at the time of the judgment upon the verdict, then the tax bills became and were a lien thereon, December 16, 1896, and April 1, 1897, respectively. Kansas City v. Ward/ 134 Mo. 172. Even in railway condemnations it is held that until the assessed damages are paid by the company to the landowner the title continues in him. Green v. Railway, 82 Mo. 657. Suppose this real estate had been improved, who would have been entitled to the rents and profits up to the time the city paid the mongy and took possession ? Clearly not the city.
    Scarritt, Vaughan, Griffith & Jones for respondents.
    (1) The tax bills on which the appellants’ base their claim were not issued and delivered to the contractor until long after the confirmation of the verdict of the jury assessing damages, ánd the lien of said bills could not attach to the land, if at all, until they were receipted for by the contractor and delivered to him. Charter and Rev. Ord. of K. 0., 1898, art. 9, sec. 18, p. 153; Eolks v. Yost, 54 Mo. App. 55; Mc-•Quiddy v. Gates, 69 Mo. App. 156. (2) The lien of the condemnation proceedings, however, by which respondents’ property was taken from them, took effect on the date of the approval of the ordinance to condemn, November 14, 1895. Charter & Rev. Ord. of K. 0., 1898, art. 10, sec. 11, p. 173; Charter & Rev. Ord. of K. 0., 1898, art. 10, sec. 20, p. 181; Barnhart v. Hughes, 46 Mo. App. 318. (3) In the condemnation proceedings instituted by Kansas City for the purpose of acquiring parks the value of property taken is required to be determined as of the time of the trial or assessment. Charter and Rev. Ord. of K. O. 1898, art. 10. secs. 13, 14, 15, 16, 17 and 18, pp. 175 to 180 inclusive, and sec. 28, p. 187; Railroad v. Townsite Oo., 103 Mo. 451; Doyle v. Railroad, 113 Mo. 280; Lewis on Em. Dom., sec. 499. (4) Tbe Scarritt land which was taken in the condemnation proceedings was, at the time tbe lien of appellant’s tax bills attached thereto, virtually tbe property of the city. Plum v. Kansas City, 101 Mo. 525; Martin v. St. Louis, 139 Mo. 259; Lewis on Em. Dom., sec. 499.
   ELLISON, I.

E. L. and W. O. Scarritt are interpleaders claiming tbe sum of $600 held by Kansas City, Missouri, for whoever may be entitled thereto. On the other band, Michael Ross claims a part of this sum and J. R. Childers tbe balance. The circuit court awarded tbe whole sum to the Scarritts and the other interpleaders appeal. Tbe record discloses that on and prior to November 15, 1895, tbe Scarritts were the owners of certain real estate fronting on Fifteenth street in Kansas City, Missouri. That

on that day an ordinance of said city was passed and approved establishing a park, known as the Paseo, and providing for condemnation proceedings, this realty being a part of the land proposed to be taken. On September 26, 1896, the condemnation jury rendered a verdict assessing the value of this land at $12,610 and judgment was rendered thereon on tbe fourteenth day of November, 1896, though, tbe money not being then paid, tbe final decree vesting tbe title in tbe city was, it seems, not entered until afterwards.

Tbe city learning of the claims of Ross and Childers, paid $12,010 to the Scarritts and withheld the $600 now in dispute that tbe courts might determine to whom it should be paid.

Tbe claims.of Ross and Obilders■ arise in this way: Tbe ordinance by which tbe paving was ordered was passed October 16, 1895, about one month prior to tbe date of the condemnation ordinance; and the ordinance by which the curbing was ordered was passed November 28, 1895, being nine days after the condemnation ordinance. Tbe tax bill for the paving was issued and became a lien December 16, 1896, and the tax bill for the curbing was issued and became a lien April 1, 1897. It will.be noticed that the ordinance for one of the improvements was passed before and the other after the condemnation ordinance, but that both tax bills were issued and therefore could only become liens after the condemnation proceeding bad culminated in a verdict assessing the damages and judgment of condemnation thereon.

Tbe Scarritts contend that special taxes for paving and curbing are based on tbe improvement to tbe abutting property and that at tbe date of tbe ordinance for condemning their property and at tbe date of tbe assessment of damages there was no improvement in tbe way of paving or curbing; that such improvement came into existence afterwards and therefore could not have formed a part of tbe damages awarded to them. •

On tbe other band, Ross and Childers contend that, while tbe improvements may not have been made or their tax bills issued when tbe damages were assessed and awarded, yet that tbe Scarritts were still owners of tbe property, since tbe damages assessed bad not been paid over to them, and'were not until after tbe improvements were made and tbe tax bills were issued; that tbe Scarritts thus being tbe owners of tbe property at date o£ .the issuance of tbe tax bills, they should only receive tbe damages assessed less tbe amount of tbe tax» bills.'

It is true that by the provisions of the charter of Kansas City the title to real estate condemned does not become divested out of the owner until the damages have been paid him. Art. 10, secs.- 17 and 28, Charter. But when the money is paid the divestiture relates back to the date of the judgment confirming the verdict of the jury assessing the damages. Lewis on Eminent Dom., sec. 499. He can not sell the property. The city has the paramount right. His possession is only permissive, subject to be terminated upon the payment of the damages assessed. Martin v. St. Louis, 139 Mo. 246; Lewis on Eminent Dom., sec. 499. The title is, in reality, suffered to be retained by the owner in the nature of a security for the payment of the damages assessed.

We therefore hold that as the improvements upon which these tax bills are based formed no part of the value of the land at the time that value was assessed, and as the tax bills impose no personal liability, and did not become a lien on the land before the judgment of condemnation, the interpleaders Ross and Childers have no right to the money in question and the judgment will be affirmed.

All concur!  