them appeal from this judgment, but the Nina | 20, 1907, and within two years from the maRealty Company alone, as owner of the lot turity of the tax bill, August 19, 1905, plainon which the lien is enforced, is the sub- tiff instituted this suit to the end of estabstantial party in interest. The other defend-lishing and enforcing the lien thereof against ants are prior owners of the property and defendant Parkview Realty & Improvement trustees in certain deeds of trust thereon, Company, owner, and the trustee in the two and it will be unnecessary to set them forth deeds of trust, but omitted to make the bene here, as they are without any beneficial in- ficiaries in such deeds of trust parties thereterest in the property and the judgment is in to. Subsequently, and after the expiration of no sense a personal one against them. At the more than two years from the maturity of time the judgment was entered, the lot on the tax bill, the property was sold at truswhich the lien of the tax bill is sought to tee's sale under the two deeds of trust above be established was owned by defendant Nina mentioned, and the Nina Realty Company beRealty Company, who succeeded to the title came the purchaser thereof. Such sales unof the Parkview Realty & Improvement Com-der the two deeds of trust were had on Nopany by virtue of the foreclosure of cer- vember 2, 1908, and it was on that day the tain deeds of trust thereon under which the Nina Realty Company succeeded to the title Nina Realty Company purchased. The lot of of the prior owner, Parkview Realty & Imground involved is parcel of city block No. provement Company, through its purchase at 3878, fronting 405.17 feet on Union boulevard the trustee's sale. The Nina Realty Compain the city of St. Louis. Plaintiff contractor ny, having thus become owner of the fee durreconstructed Union boulevard adjacent there- ing the pendency of the suit, was made a to in accordance with an ordinance of and party defendant thereto on November 20, under a contract with the city of St. Louis 1908. By filing an amended petition on to that end. At the time of the improvement that date plaintiff set forth the trustee's and the issue of the tax bill therefor, the sales and the fact that the Nina Realty Comlot was owned by the Parkview Realty & pany had purchased the lot thereunder, made Improvement Company, a corporation, sub- that company a defendant, and prayed that ject, however, to two deeds of trust then out- its interests as owner of the property should standing thereon. The first of these deeds of be subject to the lien of the tax bill in suit. trust was executed on July 1, 1902, by the Among other things, section 25, art. 6, of Parkview Realty & Improvement Company, the city charter, provides the lien of any owner, to the Lincoln Trust Company, trus- tax bill that is not entered satisfied within tee, to secure certain bonds. The second of two years after its maturity, unless prosuch deeds of trust was executed on August ceedings in law shall have been commenced 1, 1902, to the Lincoln Trust Company, trus- to collect the same within that time and tee, to secure certain other bonds, and both shall still be pending, shall be destroyed and of such deeds were duly recorded about the of no effect against the land charged there time of their execution. While these deeds with. In view of this provision of the charof trust were in force and the indebtedness ter, the defendant Nina Realty Company inevinced by the bonds therein described was terposed its answer to the effect that the lien subsisting and unpaid, the city provided by of the tax bill had expired and was unenordinance for the reconstruction of Union forceable against its interests in the properboulevard. This ordinance appears to have ty for the reason that no suit had been inbeen passed in February, 1903, and the con- stituted thereon within two years after the tract for such reconstruction work was duly maturity of the bill against the beneficiaries let thereunder to plaintiff. Plaintiff per- in the deed of trust under which it purformed the work in accordance with the or- chased. Though the Parkview Realty & Imdinance and contract, and on July 1, 1905, provement Company, owner at the time, was the tax bill sued on was issued to him there- sued within the two-year period, the case for. Thereafter, on July 19, 1905, notice of concedes that the beneficiaries in the two the issuance of the tax bill was duly served deeds of trust under which defendant Nina by the city marshal on the defendant, Park- Realty Company purchased were not made view Realty & Improvement Company, owner parties thereto at any time. Indeed, the first of the fee, but on no other defendant. As move made toward bringing the interests of the originally issued, the tax bill was payable in beneficiaries before the court was the amendinstallments, but upon the failure of the owned petition filed on November 20, 1908, adder of the property to pay the first install-ing the Nina Realty Company, who succeedment when due, plaintin exercised its op-ed to their rights as a defendant, and this tion under the city charter, and declared all was long after the expiration of the two-year installments thereof due and payable. Un- period prescribed in the charter, for that der the provision of the charter, the first in- period commenced to run when the tax bill stallment of the tax bill became due 30 days matured on August 19, 1905, and terminated after notice thereof was served on the owner August 19, 1907. Notwithstanding all of this, -that is, on August 19, 1905-and subsequent the court gave judgment for plaintiff, estabinstallments became due immediately like Jishing and enforcing the lien of the tax bill wise because of the owner's failure to pay against the lot of ground described and the provement Company and the Nina Realty | and that will suffice to establish the llen Company therein, as though it were unnec- against the derivative title of the Nina essary to include the beneficiaries in the deeds of trust in a suit for the enforcement of the tax bill within the two-year period prescribed to charge them or their successors as owners of the property with the consequences of the lien. Realty Company, though the beneficiaries in the deeds of trust were not made parties; for, it is said, such beneficiaries possess nothing more as against this plaintiff lienor than the right to redeem therefrom. There can be no doubt that the lien of a subsequent special tax bill duly established prevails over the lien of a prior mortgage or deed of trust, and becomes senior thereto. Such is the effect of the recent decision of the Supreme Court in Morey Engineering, etc., Co. v. St. Louis Artificial Ice, etc., Co. (Sup.) 146 s. W. 1142. This is undoubtedly the rule where both the owner of the land and the beneficiaries in the mortgage are made parties to the suit prior to the expiration of the lien, for in the case last above cited all parties in interest were before the court. See, also, to the same effect Keating v. Craig, 73 Mo. 507, where both the owner and the mortgagee were parties to the suit to enforce the lien of the tax bill. But though it be the rule that the lien of the subsequent tax bill becomes senior to the lien of the prior mort junior lienor when all parties in interest are before the court, it is the rule, too, that the rights of the beneficiaries in the mortgage are not concluded by the judgment, unless they are made parties to the suit. For a judgment to this effect on a tax bill, see Forrey v. Holmes, 65 Mo. App. 114. As to such suit to foreclose the state's lien for taxes, the Supreme Court has, in a number of cases, affirmed that, though title passed by the exe beneficiaries who have been omitted from the Obviously error lies in this judgment, for it involves and affirms the idea that one's rights may be concluded as though a valid claim existed against him or his property without having his day in court until long after such claim had become extinguished of its own force. By section 25, art. 6, of the charter, it is provided the tax bill shall become a lien upon the property charged therein, and 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. From this it appears that the lien is to be enforced against the land in the name of the owner thereof, and by subsequent provision of the same section the lien of the tax bill, it is declared, "shall be destroyed and of no effect against the land charged therewith," unless proceed-gage, which is remitted to the position of the ings shall have been commenced to collect the same within two years from the maturity of the bill and still be pending. Therefore, the proceedings must be commenced on the tax bill and against the owner of the land within such two-year period in order to preserve and establish the lien, for otherwise it is destroyed and extinguished perforce of the very words that gave it life. The authorities are abundant and of one accord, to the effect that the suit must be instituted against the owner within the two-year period pre-cution sale, their right to redeem was still scribed, as will appear by reference to the following cases: The case of Eyermann v. Scollay, 16 Mo. App. 498, declares and affirms the rule under the St. Louis charter. And the following are to the same effect with respect to the charter of Kansas City: Smith v. Barrett, 41 Mo. App. 460; Jaicks v. Sullivan, 128 Mo. 177, 30 S. W. 890; Smith v. Boese, 39 Mo. App. 15; Forrey v. Holmes, 65 Mo. App. 114; Parker-Washington v. Kemper, 143 Mo. App. 244, 128 S. W. 271. For rulings to the same effect under the St. Joseph Charter, see St. Joseph v. Baker, 86 Mo. App. 310; St. Joseph v. Baker, 113 Mo. App. 691, 88 S. W. 1122. The doctrine declared by all of the cases is that the two-year period prescribed after which the lien is to terminate is not a mere statute of repose to bar actions but is rather a limit to the existence of the lien, and therefore, unless the suit is instituted against the owner within that time, such lien expires, and it may not be revived and enforced against the interests of the owner in the land. Smith v. Barrett, 41 Mo. App. 460. But it is said, though such be true, the present suit was instituted against the Parkview Realty & Improvement available, as will appear by reference to Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Corrigan v. Bell, 73 Mo. 53; Allen v. McCabe, 93 Mo. 138, 6 S. W. 62. Considering the thought reflected through- charter contemplated the lien of the tax bill | Nina Realty Company from which a redempshould prevail over the rights of a prior tion may be made. If the lien continued to mortgage, the Supreme Court quoted from section 25 of the charter as follows: "Said tax bills shall be and become a lien upon the property charged therewith, and 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." Touching the words thus quoted, the court says: "Construed in the light of the case last cited, this means that the tax is a lien upon the property, to be enforced by a proceeding in rem against the property. And, as ruled above, the word 'owner' includes incumbrancers." If, then, the beneficiary in the deed of trust is to be regarded as an owner of the property for the purpose of postponing the lien of his prior mortgage to the lien of the subsequent tax bill, it would seem that he should be regarded as an owner in whose favor the requirement to institute suit within the two-year period in order to preserve the lien obtained. On a like question the Kansas City Court of Appeals, under the charter of that city, declared that, unless the beneficiary in the mortgage was made a party to the suit within the twoyear period, the lien as to his interests amounted to naught, or, in other words, had expired. See Forrey v. Holmes, 65 Mo. App. 114. But it is argued that the junior lienor is never a necessary party to a proceeding for the enforcement of the senior lien, and that a valid judgment may be had against the res enforcing the lien, though the junior lienor is not a party, but subject, however, to his right to redeem. The argument is obviously sound in those cases where the lien is a continuing one, and so comprehensive by the terms of the statutes as to include all interests in the land in whosesoever name it may be. The cases of Stafford v. Fizer, 82 Mo. 393, Gitchell v. Kreidler, 84 Mo. 472, Allen v. McCabe, 93 Mo. 138, 6 S. W. 62, and numerous other authorities declare the rule where the lien of the state for taxes has been enforced. In the argument advancing this proposition, it is said the junior lienor, the holder of the mortgage here, at best has a lien only on the equity of redemption or a right to redeem from the prior lien of the tax bill, and that this continues and may be availed of to the very day of sale under the tax judgment; that, though defendant Nina Realty Company was not made a party until after the two years had expired and the beneficiaries in the mortgages to whose rights it succeeded were never made parties at all, its right to redeem is still open, and this defendant has been given its day in court with respect thereto, for it may redeem even after the judgment is affirmed and at any time before the property is sold in execution thereunder. Obviously this argument assumes a exist as in the tax cases and obtained upon the realty without regard to the ownership, the argument would be persuasive, indeed. But here the lien of the tax bill expired before it was ever asserted, as the charter requires, against the beneficiaries in the mortgages or the Nina Realty Company, which succeeded to their rights, and, furthermore, the lien of the tax bill does not obtain against the land without regard to the ownership. The general taxes in favor of the state are declared by section 11385, R. S. 1909, to obtain against the land "no matter who is the owner nor in whose name it was assessed." And the lien with respect to such taxes obtains accordingly there; that is, on every interest in the land. It is true that the owner of the land must be made a party to the tax suit for the purpose of enforcing the lien of the state, to the end of conferring the jurisdiction over the res, but the tax itself is affixed against the land as a matter of law without regard to the owner thereof. Such is not true as to a tax bill representing special assessments as for benefits because of improvements made, for, unless the improvements are made, no tax can obtain, and that such improvements were made is a fact to be proved as a basis for the lien. Special tax bills become a lien upon the property, and may be collected of the owner of the land, it is true, but to this end proof is required against the interest of the owner as a condition precedent to affixing the lien upon his interest in the land. This proof, according to section 25 of the charter, may be made by the tax bill itself, which is sufficient prima facie evidence "of the liability of the person therein named as the owner of the land charged with such bill to pay the same." The tax bill here involved names the Parkview Realty & Improvement Company as the owner of the land, and in no way refers to the beneficiaries in the mortgages. Obviously, then, the bill itself is sufficient to evince the right of a lien against only the Parkview Realty & Improvement Company. In the sense of the charter, as before pointed out, the beneficiaries in the mortgages are regarded as owners of the property too, and it is essential when others appear to be owners than those named in the tax bill that proof aliunde the bill shall be made in order to affect the rights of such owners not named therein. See Farrell v. Rammelkamp, 64 Mo. App. 425; McCormick v. Clopton, 150 Mo. App. 129, 130 S. W. 122. That the tax bill is not prima facie evidence of the right to the lien against a mortgagee not named therein has been expressly decided, as will appear by reference to Kansas City to the use, etc., v. American Surety Co., 71 Mo. App. 315. Obviously the charter intends that every person interested as owner in the property sought GRANITE BITUMINOUS PAVING CO. v. 3, 1912.) 1. MUNICIPAL CORPORATIONS (§ 564*)-ENFORCEMENT OF SPECIAL TAX BILLS-LIMITATIONS. Under St. Louis City Charter, art. 6, § 25, providing for the maturity of special tax bills 30 days after service of notice on the owner. an action to enforce a tax bill brought within of notice against the owner, wherein the purtwo years after maturity of the bill by service chaser at a mortgage foreclosure sale is made a party defendant, is not barred by limitations. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1273; Dec. Dig. § 564.*] shall have a right to defend against the assertion of such lien, and most assuredly the assertion of the lien should be made while the right to it continues to exist and not after it dies, for then defense would be unnec- (St. Louis Court of Appeals. Missouri. Dec. essary. From these considerations alone, it would seem that the rule which prevails as to the right of the junior incumbrancer to redeem from the general tax lien, and, except for that, a judgment to which he is not a party concludes him, is without force here, for, unless this lien is established by evidence aliunde the tax bill, no lien whatever obtains against the rights of such owner as the Nina Realty Company; whereas, in the case of the lien for general taxes, it comprehends the whole estate and every interest in the land, without regard to matter of ownership what-2. APPEAL AND ERROR (§ 195*)—QUESTIONS ever, and obtains against both prior and subsequent incumbrancer at all hazards. In the case of the special tax bill, the lien obtains against the owners and their interests in the land only by virtue of its being established against their interest in the land by proof and not because it comprehends such interests whether or no as a matter of law. Unless the lien is asserted within the twoyear period and subsequently established, there is naught from which redemption should be made. It seems to me the opinion of the court in this case overlooks the fact that there is no lien here until established, and treats the matter as though there were a subsisting lien as in the case of general taxes or in the case of a mortgage, both of which liens obtain without any proof whatever. In this cause, instead of there being a lien upon the land, there exists only a right to establish a lien which attaches provided competent proof is made against the owner within two years. If the mortgagee is an owner, as declared in Morey Engineering & Construction Co. V. St. Louis Artificial Ice Rink Co. (Sup.) 146 S. W. 1142, then such mortgagee should be sued REVIEWABLE-QUESTIONS NOT RAISED IN bill, no question was raised as to the validity [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1149; Dec. Dig. § 195.*] Appeal from St. Louis Circuit Court; Eugene McQuillan, Judge. Action by the Granite Bituminous Paving Company against the Parkview Realty & Improvement Company and others. From a judgment for plaintiff, defendants appeal. Affirmed. all of St. Louis, for appellants. Sturdevant & Sturdevant, of St. Louis, for respondent. Bland & Cave and Carter, Collins & Jones, in this cause is identical with the record in ROMBAUER, Special Judge. The record cause 12,563, 151 S. W. 479, in which an opinion has been filed to-day, except in three respects, namely: First. That the amount of the special tax bill sued upon was only for $160.81. Second. That the tax bill as within the two years limitation prescribed by originally issued was subsequently amendthe charter in favor of an owner. For the ed by the comptroller, so as to insert the reasons given above, I respectfully dissent. name of the Parkview Realty Company as I deem the judgment of the court to be in owner; the bill originally issued being one conflict with that of the Supreme Court in the against the United Railways Company alone. case last cited, in that it denies to the mort- Third. Notice and demand of payment was gagee the right of an owner to be sued with- served on the Parkview Realty & Improvein two years, as prescribed by the charter.ment Company named as owner in the speFurthermore, the judgment of the court in cial tax bill on February 28, 1907, and not this case is in conflict with the judgment of before. the Kansas City Court of Appeals in the case of Forrey v. Holmes et al., 65 Mo. App. 114, which is directly in point, to the effect that, unless the mortgagee is sued within two years, the right to establish a lien against his interests expires. Because I deem the judgment to be in conflict with that given in the two cases last above cited, I request that the cause be certified to the Supreme Court for final determination. [1] Section 25 of article 6 of the charter of the city of St. Louis provides the conditions under which a special tax bill matures. The maturity of any installment of the bill, or of the entire bill as may be, is 30 days after notice is served on the owner; hence the special tax bill sued upon in this case matured as against the Parkview Realty Company on March 30, 1907. The Nina Realty Company, which is the successor in title of the Parkview Realty & Improvement It is therefore ordered that the motion for rehearing be sustained, that the record entry of the judgment be amended, as is ordered to be done in cause 12,563 (151 S. W. 479), and as thus amended be affirmed, and that the cause be remanded to the trial court for further proceedings. In this disposition of the case REYNOLDS, P. J., concurs. CAULFIELD, J., not sitting. NORTONI, J., dissents for the reason stated in his dissenting opinion in cause No. 12,563. Company as well as of all the beneficiaries | 12,563, except the amount sued for, and the of the two mortgages of the Parkview Real- property sought to be charged with the lien ty Company to the Lincoln Trust Company, of the special tax bill. was made a party defendant in the case on March 28, 1907, and within two years after the tax bill matured against the Parkview Realty Company and those claiming under it. Since it cannot be claimed on any rational theory that the beneficiaries in a deed of trust or mortgage are necessary parties defendant to a suit for its enforcement, after its foreclosure, and when the legal and beneficial title alike have vested in the purchaser at foreclosure sale, and since the purchaser, namely, the Nina Realty Company, was made a party defendant, within two years after the maturity of the bill, the question of limitation does not arise in this case. The cause is therefore certified to the Su preme Court for final determination. NORTONI, J. (dissenting). As the judg[2] That the special tax bill was amended so as to name the Parkview Realty & Im- ment of the court in this case involves the provement Company as owner is, of course, identical question and determines it in the immaterial, since no question is raised as same way as that involved in the case of to the validity of the amendment, and no Granite Bituminous Paving Company v. Parkobjection was made by defendant to the ad-view Realty & Improvement Company et al. mission of the amended tax bill as evidence. The same error appears by the record in making the judgment bear 8 per cent. interest from date of its rendition as in case 12,563. It is therefore ordered that the motion for rehearing be sustained, and that so much of the judgment entry as contains the words "with interest at the rate of 8 per cent. per annum from the date of the judgment until paid" be stricken from the record, and that the judgment as thus amended be affirmed, and that the cause be remanded to the trial court to proceed in conformity with this opinion. REYNOLDS, P. J., and NORTONI, J., concur. CAULFIELD, J., not sitting. (No. 12,563) 151 S. W. 479, between the same parties and decided to-day, I respectfully dissent therefrom for the reasons given in the dissenting opinion filed in the case last mentioned. I deem the judgment of the court in this case to be in conflict with the judgment of the Kansas City Court of Appeals in the case of Forrey v. Holmes, 65 Mo. App. 114, and also with the judgment of the Supreme Court in the case of Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co. (Sup.) 146 S. W. 1142, and therefore request that the cause be certified to the Supreme Court for final determination as provided in the Constitution. GRANITE BITUMINOUS PAVING CO. v. GRANITE BITUMINOUS PAVING CO. v. (St. Louis Court of Appeals. Missouri. Dec. PARKVIEW REALTY & IMPROVE MENT CO. et al. (St. Louis Court of Appeals. Missouri. Dec. 3, 1912.) 3, 1912.) 1. MUNICIPAL CORPORATIONS (§ 567*)-ENFORCEMENT OF SPECIAL TAX BILLS-PLEADINGS-BURDEN OF PROOF. Appeal from St. Louis Circuit Court; Eu- tax bill which alleges that in making the asgene McQuillan, Judge. Action by the Granite Bituminous Paving Company against the Parkview Realty & Improvement Company and others. From a judgment for plaintiff, defendants appeal. Affirmed, and cause certified to the Supreme Court for final determination. Bland & Cave and Carter, Collins & Jones, all of St. Louis, for appellants. Sturdevant & Sturdevant and Charles W. Bates, all of St. Louis, for respondent. ROMBAUER, Special Judge. The record in this cause is identical with the one in An answer in a suit to enforce a special sessment a tract of land not subdivided was arbitrarily divided into lots and separate tax bills issued against it, one of which was sought to be enforced, etc., alleges new matter which defendant has the burden of establishing by legal evidence to defeat a recovery. Corporations, Cent. Dig. §§ 1276-1281; Dec. [Ed. Note.-For other cases, see Municipal Dig. 567.*] 2. MUNICIPAL CORPORATIONS (§ 485*)—PUBLIC IMPROVEMENTS-SPECIAL TAX BILLSVALIDITY. Under the St. Louis city charter, making special tax bills prima facie evidence of a proper assessment, a special tax bill was properly adjudged valid as against the claim that in making the assessment a tract of land not subdivided was arbitrarily divided into two lots, |