
    THE CITY OF ST. JOSEPH to the use of PETER SWENSON, Defendant in Error, v. ZEILDA FORSEE, Plaintiff in Error.
    Kansas City Court of Appeals,
    December 19, 1904.
    1. TAXB1LL: Owner: Omission of Name. A taxhill should he issued against the record owner of the property to he charged; hut omitting to name such owner in the hill will not render it invalid.
    2. -: -: Suit: Notice. The holder of a taxhill has a right to assume that the record owner is the true owner and to sue accordingly; and a sale under such judgment carries the title against the grantee in an unrecorded deed, provided the purchaser has no notice of such deed.
    3. -: -: -: Prima Facie Case. Anyone having an interest in the property sought to he charged may he made a party defendant, hut the taxhill is not prima facie evidence against one not named therein; and a plaintiff must mate out his case against such party aliunde.
    
    Error to Buchanan Circuit Court. — How. A. M. Wood-son, Judge.
    Reversed and remanded.
    
      
      James F. Pitt for plaintiff in error.
    (1) The chief question presented by this record involves the validity of a sewer bill, issued against and in the name of a dead person, whom the officer knew to he dead, and while he in fact knew who was the owner of the property described in it. R. S. 1899, sec. 5686. (2) Is this statute mandatory, or merely directory? If mandatory, then a taxbill made out, as in this case, against a dead person, whom the engineer knew to be dead, and who by no possibility could be the owner, is absolutely void, and not amendable. In such circumstances the officer makes no mistake, to be corrected or amended; he willfully fails or refuses to obey the law, and his act is a nullity. Sedalia v. Gallie, 49 Mo. App. 397; Westport v. Mastin, 62 Mo. App. 657; State ex rel. v. Gibson, 12 Mo. App. 1; Kefferstein v. Knox, 56 Mo. 186; Vance v. Corrigan, 78 Mo. 97; Jaicks v. Sullivan, 128 Mo. 177; St. Louis v. Wenneker, 145 Mo. 239.
    
      Graham & Fulkerson for defendant in error.
    (1) The judgment is for the right party. The taxbill was made out <£in the name of the owner” within the meaning of the statute. R. S. 1899, sec. 5686; Vance v. Corrigan, 78 Mo. 94; Payne v. Lott, 90 Mo. 676; Nolan v. Taylor, 131 Mo. 227; Elliott on Roads and Streets (2 Ed.), sec. 598; Reed v. Kalfsbeck, 147 Ind. 148; Trust Co. v. Chehalis Co., 79 Fed. 282. (2) At most the statute is but directory and not mandatory. St. Louis to use of Rotchford v. DeNoue, 44 Mo. 136.
   BROADDUS, J.

— This is a suit upon a taxbill issued against Amanda Corby as the owner of the property sought to be charged with the lien for work done by Peter Swenson in the construction of a sewer in the city of St. Joseph, Missouri. At the time the contract for the work was let the title to the property in question — as it appeared by tbe records — was in said Anaanda Corby, but tbe fact was that sbe had died previously thereto and tbe same bad descended to tbe defendant who was her sole heir at law.

On tbe trial tbe taxbill was introduced in evidence over tbe objections of tbe defendant. Tbe ground of objection was that tbe taxbill should have been made out against tbe owner of tbe property. Tbe defendant bad set up in her answer that when said taxbill was issued tbe engineer who issued it, as well as plaintiff Swenson, knew that tbe title to tbe property was in tbe defendant. This answer was not controverted by any reply and thereby stood confessed. Tbe plaintiff contends that tbe case was tried upon tbe theory that said allegation was traversed but tbe record of tbe trial does not so show.

Section 5686, Revised Statutes 1899, governing cases of this kind requires that taxbills of tbe nature •of that in controversy should state tbe name of tbe owner of tbe property. Tbe courts bold that tbe owner mentioned in this section is that person whom tbe public records show to .be vested with tbe title, in the absence of knowledge to tbe contrary. [Smith v. Barrett, 41 Mo. App. 460; Vance v. Corrigan, 78 Mo. 94; Cowell v. Gray, 85 Mo. 169; Payne v. Lott, 90 Mo. 676 and Crane v. Dameron, 98 Mo. 567.] Yet, it is equally as well-settled law that an omission to state in a taxbill tbe owner of tbe property sought to be charged with a lien does not render it invalid. [City of St. Louis ex rel. v. DeNoue, 44 Mo. 136; Stadler v. Roth, 59 Mo. 400; Vieths v. Planet P. & F. Co., 64 Mo. App. 207.] It follows therefore that notwithstanding tbe said tax-bill was not made out against tbe known owner of tbe property, tbe same was not invalid.

Tbe statute requires that a suit to enforce such tax-bills shall be brought against tbe owner of tbe property to be charged; and in tbe absence of knowledge or notice to the contrary, the holder of the bill has the right to assume that the person in whom the records show the title to be vested is the true owner, and to sue accordingly; and that a sale under execution upon a judgment against the record owner passes the title as against the grantee in an unrecorded deed from him, provided the purchaser had no notice of the unrecorded deed. [Vance v. Corrigan, 78 Mo. 94; Payne v. Lott, 90 Mo. 676; Crane v. Dameron, 98 Mo. 567.]

It is also the law that any party may be sued to enforce the lien of a taxhill against any person who has an interest in the property sought to be charged, but the taxhill is not prima facie evidence of liability against a person so sued who is not stated in such tax-bill to be the owner of such property. [Vieths v. Planet P. & F. Co., supra, and Construction Co. v. Loevy, 64 Mo. App. 430. It therefore follows that regardless of its theoretical value, it was a matter of no consequence at the time the engineer issued the taxbill whether or not the defendant not named was the owner of the property. Although sued, the said taxbill as to her was not prima facie evidence of liability. As the court held that it was such prima facie evidence the cause must be reversed for that error. But the suit was properly brought under the statute and the plaintiff will be required to prove his case aliunde said taxbill in the usual manner. Reversed and remanded.

All concur.  