(282 S. W.)

relation existed between plaintiff and defend- | was obtained through fraud and deception. ant at the time the deed in question was executed." On this point also the judgment is general and does not indicate whether the trial court found that a fiduciary relation did not exist, or whether it did exist and defendant successfully discharged the burden imposed thereby. Plaintiff and defendant were not blood relatives, though plaintiff and her husband treated defendant as their son from his early childhood. However, if defendant had been plaintiff's own son, this kinship would not in itself have necessarily established a fiduciary relation with the presump tion of the exercise of undue influence in the accomplishment of an act beneficial to defendant. The relationship of parent and child does not in itself raise any presumption against the validity of a deed from parent to child. Doherty v. Noble, 39 S. W. 458, 138 Mo. 25, loc. cit. 32. The law imposes no penalty for the services arising out of this relation, nor does it put a burden upon their grateful acknowledgment. Sinnett v. Sinnett (Mo. Sup.) 201 S. W. 887, loc. cit. 889. Even if the exercise of undue influence had been expressly pleaded, the burden properly rested upon plaintiff to prove it, and this she utterly failed to do. Both this and the foregoing contention of appellant are fully answered in the language of James T. Blair, J., speaking for this court on a similar state of facts in Cullinane v. Grant, 242 S. W. 903, 907, 294 Mo. 423, loc. cit. 436:

"While the petition sets up facts which seem designed to show a fiduciary relationship between respondent and her daughter, there is neither pleading nor evidence that respondent was unduly influenced, in the ordinary sense, to execute the deeds. The petition pleads and respondent's theory is that respondent was deceived by false representations and induced to sign deeds when she thought she was signing a will. There is no pretense that she was induced by undue influence knowingly to do something which it was not her own will to do. The con

tention is that her daughter and the draftsman and his assistant substituted for the will which respondent says she thought she was signing, the deeds in question in this case. Respondent's petition charges that an outright fraud was practiced upon her and that her asserted inability to read made the success of this fraud possible. This negatives the idea that any relationship between respondent and her daughter induced her to sign the deeds."

[7] III. The third and fourth assignments of error are that the judgment is for the wrong party, and should have been for plaintiff instead of defendant. Along with these we may also consider that part of the first assignment urging error in the finding that there was no equity in plaintiff's petition. The issue joined was whether or not the deed

Plaintiff first denied that she ever made a deed to defendant. This denial contradicted her petition. She then testified that at defendant's request she signed a paper writing by mark, which was read over to her, but which she did not understand, and that she signed no other paper. The evidence was overwhelming that she did execute this deed to defendant on the day shown by the acknowledgment; that before she signed the deed it was read over to her, excepting only the legal description; that its provisions and effect were fully explained to her; and that she signified her understanding and approval. It clearly appears that she understood the purpose, effect, and manner of executing a deed. On the same day she executed another deed to her brother Adam Bender, which act she recalled at the trial, and many months subsequent to the date of her deed to defendant she executed a much more complicated conveyance to her "folks" preparatory to instituting this suit, and not only recalled the circumstance, but appeared to have a clear comprehension of its terms and effect. It is clear from the record that her execution and delivery of the deed to defendant was her free and voluntary act, and no deception was practiced upon her. Nor did she become dissatisfied with what she had done until some months later, when her brother Adam Bender and Joe Bennett learned that such a deed was in existence, and Bennett began to hold conferences with her. He arranged for counsel, procured a deed to all her property, both real and personal, and finally joined her with other grantees named in this deed in a suit to set aside the deed previously made to defendant, he and the Benders later reconveying only the real estate to her by deed withheld from record, then withdrawing as plaintiffs and nominal parties in interest, leaving Mrs. Feil as sole plaintiff, Bennett and Adam Bender reappearing at the trial to testify in her behalf. These and other significant facts appearing in the record force us to conclude that some, if not all, of the grantees named in plaintiff's second deed, rather than defendant, have exercised an undue influence upon, and dominated, the mind and purpose of this good woman.

IV. Appellant also assigns error in admitting incompetent, irrelevant, and immaterial evidence offered by the defendant, and in rejecting competent, relevant, and material evidence offered by plaintiff. These assignments are not urged in appellant's brief, and we find no reversible error in the record. The judgment was for the right party, and it is affirmed.

All concur.

sessments against all property within the STATE ex rel. DUNMORE REALTY CO. v. benefit district of said sewer. Said district KIMBALL, City Comptroller, et al. did not include all of Kansas City. Relator then owned the property in question. It was

(No. 26859.)

29, 1926.)

(Supreme Court of Missouri, en Banc. March situated within the benefit district. Relator paid the special tax bill issued against said property, and thereafter conveyed said property to the Schoolings by ordinary corporation warranty deed. No reference was made in the deed to the payment of the special sew

fore refund was authorized.

er tax bill.

Municipal corporations 523 (1)-Grantor and not grantee held entitled to refund of special tax paid by grantor (Const. Amendment 19. See Laws 1925, pp. 411, 412). Where landowner in benefit district paid asAfter relator conveyed the property to the sessment for sewer construction, and thereafter city assumed entire cost of sewer, right to re-Schoolings, such proceedings were had by fund of special tax paid by owner held, in view the council and by the voters of said city, at of ordinance pursuant to Const. Amendment 19 an election held for the purpose, that an is(see Laws 1925, pp. 411, 412), authorizing reim-sue of bonds of said city in the sum of $3,bursement to person who paid tax bill, to be- 000,000 was authorized to pay for such sewlong to payer thereof, and not to grantee, who er by taking up unpaid tax bills and by repurchased land after tax bill was paid and be- funding payments previously made by property owners within the benefit district. This was done on the theory that the improvement was a benefit to the whole city rather than only to a part of it. As no question is raised concerning any of the proceedings or the validity of said bonds, we need not notice the various proceedings, except as they may bear on the question before us. Said bonds were. issued and sold and the proceeds thereof Mosman, Rogers & Buzard and Ralph S. were paid into the city treasury and an apLatshaw, Jr., all of Kansas City, for relator.propriation was duly made for the purpose James S. Summers, of Kansas City (Wallace Sutherland, of Kansas City, on the brief), for respondents Schooling.

Original mandamus by the State of Missouri, on the relation of the Dunmore Realty Company, against George E. Kimball, as City Comptroller of Kansas City, and others, in which Lora A. Schooling and another filed supplemental return. Peremptory writ to is

sue.

Solon T. Gilmore, John S. Cannon, and James S. Summers, all of Kansas City, for other respondents.

BLAIR, C. J. This is an original proceeding in mandamus against the comptroller, auditor, and treasurer of Kansas City to compel a refund to relator of the sum of $469.80, paid by it in discharge of a special tax bill issued against certain real estate in Kansas City. Our alternative writ issued and service thereof was acknowledged by respondents, who thereafter filed their return. By leave of court a supplemental return was filed for Lora A. Schooling and Charles F. Schooling, her husband, who claimed to be entitled to such refund by virtue of the fact that they purchased the property from relator after said tax bill was paid and before the refund was authorized. Relator filed its reply to said returns. An agreed statement of facts was filed. The case was argued and submitted upon the pleadings and such agreed statement of facts.

The only question for determination is whether payment of such refund should be made to relator or to the Schoolings. To understand the contentions a brief recital of the admitted facts will be necessary. The property. described in the petition was situated within the benefit district of what is known as the Turkey Creek sewer. This sewer was originally paid for by special as

of taking up unpaid tax bills and to refund to persons entitled thereto any sums paid out by them in discharge of such special tax bills.

The sole reason the comptroller refused to make a requisition upon the auditor for the payment of the refund to relator was his inability to determine whether relator or the Schoolings were entitled to receive such refund. The importance of a correct decision upon that question is apparent from the fact, which was stated in oral argument, that there were then 2,975 instances where tax bills had been paid and the property against which they had been issued had been conveyed after such tax bills were paid and before the refunds were authorized. The same uncertainty concerning the rights of respective claimants exists in all of these instances.

It is conceded that, if relator is entitled to such refund, our peremptory writ should issue, and, if relator is not so entitled, our alternative writ should be quashed and our peremptory writ denied. No question is raised as to the appropriateness of the remedy by mandamus here invoked. Nor is any question raised concerning the right of the Schoolings to appear in this court and file a return, as well as to brief and argue the case. Without passing on their rights in the premises, we will assume, for the purposes of the case, that they are rightfully in court.

In brief, it is the contention of relator that it is entitled to such refund under the ordinance, because it paid the special tax bill, and that the right to the refund was not con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(282 S. W.)

veyed to the Schoolings by the transfer of | face of the tax bills paid or payable and interthe title to the real estate. On the other est paid or payable thereon." hand, it is the contention of the Schoolings that the increased value or benefit accruing

Relator contends that the language quoted from each of said ordinances, and particularly of Ordinance 50683, is conclusive of the intent and direction of the council that the refund should be made to the persons, firms, or corporations who had paid special tax bills against their property, regardless of the ownership of such property at the time such refunds were authorized. The language of Ordinance 50683 is:

to relator's property by the construction of the sewer, in the absence of facts to the contrary, will be presumed to have entered into the consideration paid to relator by the Schoolings for the property, and that, by the payment to it of such consideration, relator was reimbursed for the special assessment paid by it, and that the Schoolings are entitled to the refund by reason of their deed from relator, although such refund is not "That the city comptroller be, and is hereby mentioned in such deed. They further con- authorized, upon satisfactory evidence being tend that the language of the ordinance can- presented to him by any person, firm or cornot be held to govern the rights of the par-bursed for having paid any such tax bills, to poration of the right to be reimties, even if it provided for the refund to remake a written requisition," etc (Italics lator as the one who paid the special tax ours.) bill.

The proposal to issue bonds for $3,000,000 and to use the proceeds for paying unpaid tax bills and for making refunds to those property owners who had already paid the special assessments against their property within the benefit district was initiated by Ordinance 47479. The first and second propositions contained in said ordinance had reference to the issuance of bonds for other sewers. The third proposition was as follows:

"For the purpose of assuming the cost of constructing the Turkey Creek sewer, and paying for the same and refunding the assessments heretofore or hereafter collected on account of the same, three million dollars ($3,000,000)."

Ordinance 47480 provided for an election to authorize such bond issue. The language of the third proposal of said ordinance was as follows:

"To increase the indebtedness of the city by borrowing three million ($3,000,000) dollars and issuing negotiable general bonds of the city for the purpose of assuming the cost of constructing the Turkey Creek sewer, and paying for the same, and refunding the assessments heretofore or hereafter collected on account of the same.

It is admitted that said proposal was carried at the election. Ordinance 50683 was thereafter passed. Only the first paragraph of section 1 is of importance here. It reads as follows:

"That the city comptroller be, and is hereby, authorized, upon satisfactory evidence being presented to him by any person, firm or corporation of the ownership of any tax bill issued for the payment of the cost of constructing the Turkey Creek sewer in Kansas City, Missouri, or of the right to be reimbursed for having paid any such tax bills, to make a written requisition upon the auditor of Kansas City, in favor of those entitled thereto, for the amount he finds is payable to such person, firm or corporation, which amount shall be the

*

*

Taking into consideration the language of all of the ordinances, the conclusion inevitably follows that the authority to make reimbursement was confined to the persons who paid the tax bills. The ordinances were in harmony with the constitutional amendment which authorized the issuance of bonds and the incurring of indebtedness for the purpose of refunding assessments collected on account of the Turkey Creek sewer. Laws of 1925, pp. 411 and 412; Bernays v. Wurmb, 4 Mo. App. 231; Savage-Scofield Co. v. City of Tacoma, 105 P. 1032, 56 Wash. 457; Borton v. Portland, 125 P. 847, 62 Or. 544; Striker v. Striker, 52 N. Y. S. 729, 31 App. Div. 129; State ex rel. Allis v. Mayor, etc., of Milwaukee, 15 Wis. 250.

We do not understand that the Schoolings make any contention that the language of the ordinance can properly be construed otherwise. Their only contention is that the assessment, increased the value of the proppublic improvement, paid for by the special erty in relator's hands, and that such increased value was taken into consideration in fixing the price at which relator sold the property to them and passed to them with their purchase, together with their right to the refund, and that the city could not take away such right by providing that the refund should be made to the person paying the special assessment instead of the grantee of such person.

They cite and mainly rely upon Neer v. City of Salem, 149 P. 476, 77 Or. 42. There the facts were that sewer systems were separately provided for North Salem and for South Salem. The assessment for South Salem was subsequently declared invalid. The assessment for North Salem was held valid. Thereafter bonds were issued by the city to pay for both improvements to take care of the injustice existing by reason of the fact that assessments for one improvement were held valid, while assessments for the other were held invalid. Provision was made for a refund to property owners who had already

paid their assessments. The charter provision authorizing the city of Salem to make such refund was in the following language: "The common council shall repay out of the funds derived from the sale of said bonds to all property owners who have heretofore paid into the city treasury by themselves or their grantors, such sum or sums as may have been from time to time paid by themselves or their grantors, together with interest thereon at six per cent. per annum from the date of payment as entered in the docket of city liens to the date of sale of said bonds, on account of the special assessments levied against any property to which said person held the record legal title on December 2, 1912, the date of the adoption of section 52 under the initiative laws." (Italics ours.)

An ordinance to the same effect was also passed. The plaintiff in that case had sold his property in North Salem and had given a warranty deed and had agreed to pay the assessment against his said property, in the event such assessment was held valid. Said assessment was held valid, and he paid it. Plaintiff's grantee subsequently claimed the refund and the city paid the money over to her. Notwithstanding such payment, plaintiff, who actually paid the special assessment under the circumstances set out, brought suit against the city to recover the refund. He prevailed in the trial court. The Oregon Supreme Court reversed the judgment upon the ground that plaintiff's grantee was entitled to such refund because the refunding provisions of the charter and ordinance confined the right to receive the refund to persons holding the record title to the property on December 12, 1912. In that case the refund belonged to the grantee under the plain language of the charter and ordinance, just as it does to the relator in the case at bar under Ordinance 50683 and prior ordinances. There the equities were at least as strongly in Neer's favor as they are here in favor of the Schoolings.

tention that the increased value of the property, and hence the right to the refund, passed to them under their deed from relator. Relator cites the same case as an authority supporting its contention to the contrary. For this reason the case should be clearly understood.

Dunnegan owned a lot in Minneapolis, in front of which said city had ordered a sidewalk to be constructed. The case went off on demurrer to the complaint. The cost of such improvements was determined in advance of construction and assessed as a tax against the lot. Dunnegan paid the tax and immediately conveyed the lot to Smith under an alleged representation that the sidewalk had been ordered and paid for. The construction of the sidewalk was afterwards abandoned, and the city refunded to Dunnegan the special assessment he had paid. This was after Smith had purchased the lot. A sidewalk was afterwards constructed in front of the lot, and a special assessment was made against the lot. Smith demanded that the city pay to him the tax paid by Dunnegan for the sidewalk first ordered built. city refused to pay. The trial court held that the complaint stated no cause of action against the city. The Supreme Court of Minnesota affirmed the judgment. We quote from the opinion as follows:

The

"Do these facts constitute a cause of action against the city? The equities, if any, between the plaintiff and his grantor, are not before us for adjudication, for the question before us is limited to an inquiry as to the legal rights of the plaintiff against the city. The alleged inducements offered by the plaintiff's vant to such question in this action against grantor for the purchase of the lot are not relethe city, nor is the fact relevant that a subsequent order for the laying of a sidewalk in front of the lot was made in the fall of 1901. There is no alleged connection between the two orders. The only facts, then, relevant to the question before us, are the levying of a After disposing of Neer's rights by holding sidewalk in front of the lot, a payment of the special assessment to pay for the proposed that the plain language of the charter and assessment by the owner thereof, a conveyordinance confined the right to the refund to ance of the lot thereafter to the plaintiff, a record owners at the time such refund was subsequent cancellation of the order for the authorized, the Oregon Supreme Court dis- proposed improvement, a repayment by the cussed the equities of the statute, and held city of the amount paid by the original owner that the refund provisions were not altogeth- to him, and a demand on and a refusal by the er unfair to plaintiff under the facts in the city to pay such sum to the plaintiff. The conWhile that court discussed cases hold- tention of the plaintiff is to the effect that when the money paid on the assessment for ing that the right to the refund does not run the proposed sidewalk came to the hands of the with the land, and sought to distinguish such city the money ceased to be the property of cases from the case then before that court, the man who paid it, and the city became it cannot be said that the opinion holds that the custodian of the fund as a trustee the right to the refund ran with the land in- for the owner of the lot, whoever he dependently of the charter and ordinance might be; that the fund was created for a provisions. Its judgment was rested square- specific purpose, and the property was entitled to the benefit of it. Or, in other words, the ly upon the charter and ordinance, and to city was constituted a trustee of a fund for a that extent the case is an authority support-specific purpose, and, if it did not execute the ing relator's contention here.

case.

The case of Smith v. Minneapolis, 104 N. W. 227, 95 Minn. 431, is cited and relied upon by the Schoolings in support of their con

purpose, it must see that the proper person gets the money.

"Neither the premise of this argument nor its conclusion is justified by the facts alleged

(282 S. W.)

construction of a sidewalk in front of the lot.

in the complaint. The amount of the assess-erty. That increased value passed to them ment was paid by the owner of the lot to dis- under their deed from relator. Relator paid charge a valid lien thereon, created for the the tax bill before the transfer and prepurpose of securing payment in advance for the sumably added the amount of his payment to The owner paid this lien, and conveyed the the consideration as increased value and thus lot, but the city thereafter annulled the pro- collected from the Schoolings what he had ceedings whereby the lien was created, and de- paid for the sewer. Now, because they are cided not to build the walk, whereby the con- to be taxed to pay for such sewer and are sideration for the payment failed. The city thus compelled to pay for it a second time, then refunded the money paid on the canceled they contend that they are in justice and assessment to the person who paid it. If equity entitled to the refund to reimburse the assessment had been canceled, but the them for the additional taxes they will now money not refunded, before the owner conhave to pay. Now what will the Schoolings veyed the lot, it would be clear that as against his grantee, he would have been enhave to pay for the sewer? Clearly a certitled thereafter to recover and retain the tain rate upon the assessed value of their money paid by him. It follows logically that property as general taxes to help pay the the amount paid was not, in the hands of the interest on the bonds and create a sinking city, a trust fund, which would follow the fund for their retirement. The total amount ownership of the lot. In the case supposed the of taxes so paid by them before the sewer right to the amount by the grantor would not bonds are all retired bears no necessary repass to his grantee by the deed. How, then, lation to the amount paid by relator in setcould the right to the money paid by the gran- tlement of the special tax bill. There are tor to discharge a lien on his lot for an assessment which was canceled after he had sold so many uncertain elements to be considered the lot pass by his deed? The plaintiff's an- that it is impossible even to approximate the swer to the question is this: "The lot was sold extent to which the taxes of the Schoolings with the improvement there, to all intents and will be increased on account of this bond ispurposes, and the city has no right to divert sue. The valuation of the property for the the money from the purpose for which it was placed in its hands and give it back to the purpose of general taxation may change from party who has then no interest in the lot.' year to year because of changing conditions. The answer seems equitable and plausible, but The buildings, if any are upon the property, it is not so in fact, for the city was not bound may be totally destroyed, greatly reducing to proceed with the proposed improvement, the assessed valuation of the property and and it is conceded that it might abandon the lessening the annual tax upon the property proposed improvement upon refunding the apportionable to the bonds. Then property money collected therefor. It follows that when in other sections of the city may increase the plaintiff purchased the lot there was not to all intents and purposes' a sidewalk in front more rapidly in value and the assessed valuaof it, nor did he then have any absolute right tion thereof increase in like proportion and thereby lessen the proportion of general taxes chargeable to the property of the Schoolings. The fact that the sewer bond tax will be applied to all property in the city, and not to real estate alone, also tends to complicate any calculation sought to be made. So also does the fact that the tax for the bonds is spread over real estate throughout the entire city, while the special tax bill was assessed against the property now owned by the Schoolings in its due proportion to other real estate within the limited benefit district. And what of the fact that other property of the relator must now contribute its due proportion in taxes to pay for the sewer benefiting the property of its grantees?

to have a walk built in front of the lot.

"We hold that the city was legally justified, upon the failure of the consideration for the special assessment, in paying the amount thereof to the person from whom it was received, the plaintiff's grantor, and that the complaint does not state a cause of action."

The Schoolings contend that the reasoning of the Minnesota Supreme Court supports their contention here because it was said that Smith's contention "seems equitable and plausible," although it was not held to be equitable and plausible under the particular facts in that case. The Schoolings argue that the Minnesota court would have held Smith entitled to the refund if the sidewalk had been constructed as first ordered and the method of payment had been changed, as in this case, and the money had been refunded to Dunnegan. We cannot agree with this contention. The Minnesota court held that such considerations were not good as against the city. It held that the equities between Smith and Dunnegan were not before it for adjudication in that case.

These considerations are mentioned merely to show the insuperable difficulties in the way of reaching a conclusion that the right to the refund runs with the land and passed to the Schoolings under their deed from relator. To permit the Schoolings to take down the refund when the amount they may have to pay on account of the sewer bonds may be less than the refund would manifestly be unfair.

The Schoolings do not contend that there was any express assignment of the right to In Borton v. Portland, supra, a water main the refund. They work out their claim to had been paid for by special assessment. the refund in this wise: The sewer was built | After plaintiff had purchased the real estate and added an increased value to the prop- from the man who paid the assessment the

282 S.W.-3