And the exception is that suit shall be brought on the bill within two years. The effect of the allowance of plaintiff's contention would be to add another exception, viz. "Unless the property owner agrees to a longer period." (252 S. W.) five-year statute of limitations; second, that defendant could not waive the statute applicable here, and could not by agreement extend this special limitation; third, that the allegations to the effect that defendant agreed to pay the tax bills if defendant lost in the appellate court in the suit to cancel does not disclose, nor is there any showing, that said promise was in writing, as required by section 1338, R. S. 1919. We think that the statute of limitations in the tax bill in suit is not controlled by decisions such as the Adkins Case, because there the statute created a lien for a certain period while in the present case there is no period fixed by section 8305, R. S. 1919, governing sewers for cities of the third class, the statute under which the sewer in this suit was built, and, as heretofore stated, sewer bills issued under this section of the statute are governed by the general five-year statute of limitations. Section 1317, R. S. 1919. If this latter section applies, then we are of the opinion that it should apply with all of its vigor and all of its limitations. [1, 2] The court ruled in Koch v. Shepherd (Mo. App.) 193 S. W. 601, that the general five-year statute (section 1317, R. S. 1919) governed in sewer tax bills issued under what is now section 8305, R. S. 1919. The tax bills herein involved were issued under section 8305; hence the Koch Case is directly in point, and we adhere to that ruling. The more serious question for determination is the power of the property owner to toll or waive the statute by agreement or promise, as alleged in plaintiff's petition. Adkins v. [3] One of the limitations on the general Case, 81 Mo. App. 104, involved the question five-year statute is that it may be extended of waiver of limitation of a tax bill. To by the debtor or the one holding the chose avoid the bar of the statute plaintiff in that in action. It has been said that suits to encase alleged in his petition that the defend- force tax bills, such as in this case, are acant agreed with him before the time had run tions in rem. That is true only in the sense to waive the limitation if he would not bring that a personal judgment cannot be rendered the action within the time, and that, relying against the owner of the land. In every othupon the promise, plaintiff refrained from er way a tax bill and a suit on it partakes instituting suit until limitation had run. of a personal action by making elements of When stripped of allegations not of conse-a personal nature in it, in that the tax bill quence, plaintiff in the case at bar alleges must be issued against the owner. Second, no more than was alleged in the Adkins Case. It is true that plaintiff here alleges that defendant, both prior and subsequent to the running of the statute, made the alleged promise not to contest if the suit to cancel was decided adversely to him, provided plaintiff would refrain from suing till the suit to cancel was determined. But the subsequent promise was a mere nudum pactum. 1 Wood on Limitations (4th Ed.) § 76. This text says: "But after a debt is actually barred by the statute a mere naked promise not to plead the statute has no validity, as it is a mere nudum pactum. In order to be operative it must be predicated on a new consideration." In the Adkins Case the court found that defendant had in fact only agreed to pay the tax bills if the plaintiff would refrain from suing, and had not agreed to waive the statute of limitations, but conceded that there was ground for finding also that defendant had agreed to waive the statute, and ruled on that question. The limitation of the lien fixed by the statute in the Adkins Case was: "Such lien shall continue for two years thereafter, but no longer," except under certain specified conditions which are not material here. The court, speaking of the lien and its duration in the Adkins Case, said: "It prescribes a duration, that is, it brings the lien into existence for two years, 'but no longer, except as in this article otherwise provided.'" the defendant in a suit to enforce the tax bill must be the owner of the land. He is the only one who can make a defense to the action, and, having that personal right, it would seem that, unless the statute under which the tax bill was issued limited the right to the lien to a certain period, he would have the right as a defendant to govern the limitation as to the lien. The right to the lien was limited in the Adkins Case, and so was the right to insist on the limitation prescribed in the statute relative to the time of bringing suit under the damage act, as shown in Clark v. Railroad, 219 Mo. 524, 118 S. W. 40; and the reason given for the holding of the court in the latter case (219 Mo. on pages 530, 531, 118 S. W. 42) was "because the damage act carries its own special statute of limitations which must control." [4] As pointed out, section 8305, R. S. 1919, carries no special statute of limitation, but is governed by the general statute of limitation, which does not affect the life of the lien, but affects only the right of the claimant to bring suit to enforce it. Section 8305 provides that the contractor in such tax bill may proceed to collect the same by ordinary process of law. We have found no case holding that the statute of limitation could not be waived unless the action was governed by a statute carrying its own special limitation provision. [5] We think that this tax bill is to be governed by section 8305, R. S. 1919, and sec tion 1317, R. S. 1919, and not to be governed, as contended by respondent, by section 8323, R. S. 1919. We also note that section 8305 was amended in 1921, shown by Session Acts 1921, pp. 501, 502, and that the amendment carries a special five-year limitation for the lien, which makes it, as amended, a statute of extinguishment rather than a statute of repose, as it stood prior to the amendment. [6] Something is said in respondent's brief relative to the right only of the contractor to bring this suit, and that a suit by the assignee or holder in due course is not provided for in section 8305. One of the rights of ownership of property is the right to sell it, and, unless there is some provision of law prohibiting the sale of a tax bill, the courts would not deprive the contractor from selling and shut an assignee out of court who owned the tax bill, because he had not been specially named in the statute. [7] One of the grounds in the demurrer is that the petition was bad because it is not shown that promise was in writing, as reThis quired by section 1338, R. S. 1919. question, which was raised in the demurrer, was properly one to be raised by motion. The petition merely alleges that an agree ment was entered into. If the statute cited by respondent is applicable to the case, it would be entirely proper for the plaintiff to prove a written agreement under the allegations of the petition. The failure to allegè that the contract had to plead the statute of limitation was made in writing would not render it wholly bad. In support of the petition that section 1338 does not apply to the contract alleged to have been made in this case, appellant cites the cases of Bridges v. Stephens, 132 Mo. 524, 34 S. W. 555, and Monroe v. Herrington, 110 Mo. App. 509, 85 S. W. 1002. It will be noticed that the Supreme Court in the Bridges Case, was divided there and three on the question of whether an oral agreement not to plead the statute of limitations acted upon was within the statute, and the seventh judge decided the case on an entirely different question. Judge Goode, in the Herrington Case, 110 Mo. App. 509, 85 S. W. 1002, apparently holds 'that an oral contract not to plead the statute of limitation is not barred by the statute. [8] We must therefore hold that the tax bill in this case is governed by sections 8305 and 1317, R. S. 1919; that the limitation governing this case at the time was a statute of repose, rather than one of extinguishment; and that, if the owner of a lot upon which there stands a tax bill makes a valid agreement not to plead the statute of limitation, he is estopped, when sued on a tax bill such as was issued in this case, from pleading the statute of limitation. The judgment is reversed, and the cause remanded. COX, P. J., concurs. BRADLEY, J. (dissenting). There is no question but that the statute of limitation may be waived when applicable personally to the individual waiving it. But here the suit is not one personal to defendant. It is wholly in rem as that term is generally understood. No personal judgment can go against defendant. And if a judgment of foreclosure were given, and the lots failed to bring the amount of the lien, there could be no process against defendant personally. The sole remedy is against the lots. In Adkins v. Case, 81 Mo. App. 104, cited in the majority opinion, the court seemed to give significance to the words of the statute, "and for no longer," but said: "It is against the object and policy of the law to allow the lien to be indefinitely extended by parol. If it can be extended in such way, then any one purchasing with notice could be held bound by the agreement, and thus would be introduced an element of uncertainty depending for solution, in many instances, upon mistaken or false testimony." Tax bill liens affect the title to real property, and there ought to be among all the records affecting the title such information that a title examiner could definitely determine when a tax bill lien has expired. If left to some owner to prolong the time by waiving the statute, then no one could know definitely until some conversation or oral agreement was run down and judicially determined as to its existence or nonexistence. I think it is, and should be, contrary to the policy of the law to permit the limitation on tax bill liens to be extended by oral agreement beyond the period fixed by the statute governing the particular tax bill. Suppose defendant in the case at bar had sold these lots to A., after the alleged agreement to waive the statute, and plaintiff had contended that A. knew about defendant's alleged agreement to waive, but A. contended otherwise. In such case plaintiff, in order to recover, would not only have to establish the alleged agreement to waive, but would also have to establish that A. took with notice of such agreement. Or, on the other hand, if defendant had sold to A., who knew nothing about the alleged agreement, and no claim that he knew, then plaintiff would not have a leg to stand on in the enforcement of the lien. Owners, it seems, might make agreements as to waiving the statute of limitations of tax bill liens that would create personal liability, but they cannot, in my opinion, lawfully make agreements which extend or waive the statute. Tax bill liens, created nolens volens, are to be distinguished from mortgages, deeds of trust, mechanics' liens, etc., because in such last-mentioned instances the lien is not created nolens volens, and there is usually a definite source from which it can be determined whether such lens have or have not expired. I think that the trial court was correct in sustaining the demurrer. (252 S.W.) MARKER v. CLEVELAND. (No. 3339.) (Springfield Court of Appeals. Missouri. May 10, 1923. Rehearing Denied June 8, 1923.) Physicians and surgeons 22-One assisting in care of sick person held to have right of recovery, although not a licensed nurse or attendant; "practice;" "engage." Under Laws 1921, p. 527, amending Rev. St. 1919, § 9160, prohibiting anyone from practicing as a nurse for hire or engaging in the care of the sick as an attendant unless licensed, in view of the fact that section 9162 as amended requires a certificate of facts regarding an applicant's experience and qualifications to practice as an attendant, and section 9166 as amended refers to any nurse or attendant without a certificate, a person who cared for the farm and stock of a sick person could recover for services in caring for such person, although he was unlicensed as a nurse or attendant, since the statute refers to the professional practice of nursing and the word "practice" means frequently repeated or customary action, habitual performance, a succession of acts of similar kind, habit, custom, application of science to the wants of men, the exercise of any profession, professional business, as the practice of law or medicine, and "engage" means to embark in a business; the two words as used being synonymous. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Engage; Practice.] full amount of his demand, and defendant administrator appealed. We will refer to the parties as plaintiff and defendant. The controversy waged around the question of right under the law to charge for the services plaintiff rendered in the nature of nursing. A counterclaim was filed based upon the fact that some of plaintiff's property had been in Mrs. Allison's home since the death of plaintiff's mother, sister of deceased, some eight years prior. The Jury found against the counterclaim, and no complaint was made of that finding. Melvina W. Allison was an old and childless woman who lived alone upon her farm. On August 14, 1921, she was found by neighbors lying upon the floor stricken with almost total paralysis. The neighbors who came when her condition was discovered could think of no plan by which the proper attention could be given. They advised with Mrs. Allison, and she directed that a telegram be sent to her nephew, Otto Marker, at Black Rock, Ark. In response to the telegram plaintiff came, and Mrs. Allison told him that she wanted him "to care for her stuff, and care for her." Under these directions plaintiff remained. Mrs. Allison died on September 17th, but plaintiff remained 10 days longer looking after things in general and assisting in cleaning, scrubbing, etc. Plaintiff's counsel in their statement summarize generally the character of services rendered Appeal from Circuit Court, St. Clair Coun- by plaintiff, which is, in substance, as folty; C. A. Calvird, Judge. lows: That on foot he traveled and searched for help; cared for and watered horses, cat Action by Otto Marker against M. W. tle, hogs, and chickens. He drove stock to Cleveland, administrator of Melvina W. Al-water twice each day, opening and closing lison, deceased. A claim was filed by plaintiff in the probate court, and, on appeal to the circuit court, plaintiff had judgment, from which defendant appeals. Affirmed. L. E. Crook and Hargus & Johnson, all of Osceola, for appellant. John A. Gilbreath, of Clinton, and W. L. P. Burney, of Osceola, for respondent. BRADLEY, J. Plaintiff filed in the probate court the following demand against the estate of Melvina W. Allison: gates, kept up fences, and recovered such stock as got out of pastures. He gathered eggs and marketed them, did errands, and purchased and carried groceries for the household. He assisted in feeding his aunt, sat up with her at night, assisted in turning her in bed, assisted in changing her bedding several times each day, assisted in placing pads, assisted in dressing sores, burned soiled pads and clothes, assisted in applying disinfectants to sloughing flesh, assisted in washing and dressing the dead body, ar The estate of Melvina W. Allison, Deceased, to Otto ranged for the funeral, paid the sexton, paid 1921. Marker, Dr. Aug. 16 to 26th Sept., 42 days, at $5.00 per day (nursing and managing place)... 17 Sept. Pald Sexton... Gave the minister.... Fumigating material Amount due Credit by cash by Melvina W. Allison prior to her death, sum of......... $210 00 12 50 10 00 180 $234 30 the minister, and returned from the funeral and continued to look after the property of deceased, cleaning, scrubbing, and fumigating the house and furniture until an administrator was appointed. The record discloses that the care of Mrs. Allison was a severe task. The burden of this task fell upon plaintiff and Mrs. Cauth19 00 on, a niece of deceased. Other relatives, including defendant administrator, who is a $215 30 brother of deceased, came when they could, The cause was appealed to the circuit but plaintiff and Mrs. Cauthon, who came a court, and there tried before the court and a week after deceased was stricken, remained jury. Plaintiff obtained judgment for the all the time. Balance due For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The instructions covered the issues raised. | it; custom; as the application of science The only challenge in defendant's brief per- to the wants of men; the exercise of any taining to the instructions is that they are profession; professional business; broader than the pleadings and evidence. This challenge is not well grounded. The instructions fairly submitted the issues to the jury. Defendant contends that plaintiff cannot recover for nursing, and that his demurrer should have been sustained. It is admitted that plaintiff was not a nurse; that he had no license or certificate as provided in section 9160, Laws 1921, p. 527. Able briefs have been filed by counsel on the theory that the services rendered in the nature of nursing cannot be the subject of a charge against the estate. Defendant relies on section 9160, mentioned, supra. Therein it is provided: "No person shall practice as a nurse for hire or engage in the care of the sick as an attendant for hire unless licensed by the board as hereinafter provided; except that no provision hereof shall be construed to prohibit gratuitous nursing or care for the sick by friends or members of the family or to prohibit nursing or care of the sick for hire when done in connection with the practice of the religious tenets of any church by adherents thereof, or attendants in the eleemosynary institutions of this state and of cities in this state now or hereafter having a population of 300,000 inhabitants or more, and except further that in event of a public emergency pronounced by the state board of health to exist in the state at large or any part thereof unlicensed persons shall be permitted to nurse or care for the sick for hire during the continuance thereof. A person violating this act shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars for each of fense." What plaintiff did in the nature of nursing was a mere incident of his employment. He rendered this service, not in the capacity of a professional nurse or professional attendant. Plaintiff did not come within any of the exceptions in sections 9160, 9162, or any other provision of the act. The act prohibits the practice of nursing or the engaging as an attendant in the care of the sick for hire, except as therein provided. Webster defines "practice" as: "Frequently repeated or customary action; habitual performance; a succession of acts of similiar kind; usage; hab practice of medicine or law." Among the many definitions given by Webster for "engage" is this one: "To embark in a business." The words "practice" and "engage" as used in the act are synonomous. That these words are used as synonomous in section 9160 is definitely shown in section 9162, Laws 1921, p. 529. There the licensing of an attendant is provided for, and the requirements given. Among these requirements is one giving the procedure for the registration of an attendant prior to January 1, 1922. Among other things required is a certificate of facts regarding the applicant's experience and qualifications to practice as an attendant. The same idea again recurs in section 9166, where reference is made to any nurse or attendant practicing without a certificate, etc. The intention evidently was to prohibit nursing for hire as a profession or as a business, except by those complying with the statutory provisions. There was no claim that plaintiff rendered the services in the nature of nursing as a professional nurse or professional attendant. In an emergency of the gravest kind he performed some services in the nature of nursing. He did not claim to be a professional nurse or a professional attendant. He was neither. In all the cases which we have found where convictions for crime have been had for treating the sick, or other similiar cases, dispensing medicines without a license, or where recovery for such services have been denied, have been cases where the accused or claimant was practicing the profession without having complied with the statute. Examples-see State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A. (N. S.) 179; O’Bannon v. Widick (Mo. App.) 198 S. W. 432; Id., 281 Mo. 478, 220 S. W. 853. It is clear to us that the services rendered by plaintiff in the nature of nursing were not rendered while practicing as a nurse, or while engaging in the care of the sick as an attendant; but were rendered in connection with other burdensome labor, and that he 'can recover for such services as well as the others. The judgment was for the right party and should be affirmed, and it is so ordered. COX, P. J. and FARRINGTON, J. concur. (252 S.W.) PORTER et al. v. MOORE et al. (Court of Appeals of Kentucky. May 11, 1923.) 1. Drains 49-Requirement of contractor's bid that free working space and right of way should be furnished held not to vary from advertisement so as to invalidate it. A condition in a contractor's bid for construction of a drain that the board should furnish the contractor a free building place, a free tearing-out place, and free right of way for necessary hauling, which was not specifically mentioned in the advertisement, was not such a variance from the advertisement as to invalidate the bid, since an invitation for bids to do the work necessarily implied the furnishing of a place in which to do it. 2. Drains 49-Condition in bid that work should not be begun until funds were in hand held proper under advertisement. A condition attached to a bid for construction of a drain that the contractor should not be required to begin the work until the funds to pay for it were in the hands of the commissioners did not invalidate the contract where the advertisement for bids contemplated that the work should be properly paid for, and stated that the bonds for the construction of the ditch had been sold. 3. Drains 49-Provision fixing time for completion of work held sufficient. 6. Drains 49-Landowners causing delay in construction by attacking organization of district cannot attack contract on that ground, Landowners who caused delay in the construction of a drain for a district by instituting and prosecuting litigation attacking the organization of the district, which prevented a sale of the bonds, and by threatening further litigation, cannot thereafter attack the validity of the contract for construction of the drain on the ground of delay in commencing the work resulting from their own acts. 7. Evidence 92-Parties attacking taxes have burden of proving notice was not given and assessment roll not confirmed. Taxpayers who attack the levy of a tax for a drainage district on the ground that they were not given notice of the tax, and that the assessment roll was not confirmed by the county court, had the burden of proving those allegations, even though they were thereby required to prove a negative, since the negative issue is not one whose existence is exclusively within the knowledge of the other party; and therefore the ordinary rule that party making an averment has the burden of proving it applies. Appeal from Circuit Court, Hickman County, Action by P. A. Moore and others against P. H. Porter and others, to declare a contract for the construction of a drain null and void, and for an injunction. Judgment for plaintiffs, and the contractors appeal. Reversed and remanded. Wheeler & Hughes, of Paducah, for appel The requirement of Ky. St. § 2380, subsec. 26, that notice for bids for construction of a drain shall fix the time for completing the work is not mandatory in the sense that a contract is vitiated because a specified time for completion is not fixed in the advertisement, and, where no time is fixed therein, a reason-lants. able time will be implied, and a contract re- Robbins & Robbins, of Mayfield, J. W. Benquiring a completion of the work within 12 nett, of Clinton, and John E. Kane, of Bardmonths, which is not shown to be an unreasonable time after the work is begun; which shall well, for appellees. be within a reasonable time after the board has the funds in hand with which to pay for it, is valid. 4. Drains 49-The fact that secretary of board was brother of successful bidder does not invalidate contract. The fact that the secretary of the board of drainage commissioners was a brother of the successful bidder to whom the contract for the construction of the drain was awarded, does not invalidate the contract in the absence of A contract for the construction of a drain is not invalidated because the contractor was a brother of the chief engineer of the district, who was to determine whether the work was properly done, and to make recommendation to the board for payment of estimates, since the engineer's appointment was not irrevocable, and the courts can prevent his acting as engineer or prevent abuse of authority by him if he did act. MOORMAN, J. In 1919 appellees filed their petition in the Hickman county court for the establishment of the "Brush Creek drainage district" in Hickman county. The district was established, and the plans and specifications for constructing a ditch were approved by the board of drainage commis sioners. their report of damages and benefits filed and confirmed. The board advertised for bids for constructing the ditch, and awarded the contract to P. H. Porter as the lowest and best bidder. Preliminary proceedings were had for the issuance and sale of the bonds of the district, amounting to $60,000, the estimated cost of the ditch. Thereafter some of the appellees filed suit to annul the district and discontinue the ditch, but judgment was rendered dismissing the petition, Hatchell, etc., v. Board of Drainage Commissioners of Hickman County, etc., 191 Ky. 246, 229 S. W. 1036. After the filing of the mandate of this court in that case, and on November 5, 1921, Appraisers were appointed, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 252 S.W.-7 |