Appeal of the City of Pittsburgh

| Pa. | Nov 7, 1861

The opinion of the court was delivered,

by Thompson, J.

The claim for which the lien in this case was filed, was for grading and paving the foot or side walk's opposite certain lots, the property of Arthur McClelland, on Townsend, Caldwell, and Logan streets, in the city of Pittsburgh. The proceeds of the sale in dispute, were of lots on Townsend street, being but part of the lots covered by the municipal claim. The claim was filed under the provisions of the Act of 18th April 1857, which is entitled an act “ concerning the setting of curbstone, and the paving of sidewalks in the city of Pittsburgh.” This act, with its supplement of 22d April 1858, furnishes a system on the subject of grading and paving in the city, and provides for the entry of liens for the same, their duration, and the manner of their enforcement. It certainly was not supposed that the Act of 1824, providing for the liens of taxes, rates and levies in the city and county of Philadelphia, and extended to Allegheny county by the Act of 5th April 1844, gave a lien in a case like the present, for those Acts of 1857-58 furnish an entire system independently of that act, differing very materially from it in details. We are, therefore, of opinion that the lien, if any existed, was by virtue of the Acts of 1857 and 1858. As a lien, therefore, under those acts, it had not priority in time over the mortgage, which was recorded July 27th 1848. It could not, therefore, be entitled to priority out of the sale on the mortgage. We see no authority to warrant us in giving this municipal lien a retroactive operation, and without doing so it can have no preteifee to priority. This determines the whole question in the case, and that question was stated by the auditor to be, “Is this municipal claim to be paid out of this fund?” To this we answer, we think not, for the reasons given.

We do not decide other questions presented, and which were but very little examined or argued, such as, whether certain previous sales had divested the municipal lien, or whether that yet remains on the lots covered by the mortgage. These questions were raised to prove the same result we have arrived at without them. We leave them to be determined when the occasion shall arise requiring it.

The decree of the court confirming the auditor’s report is affirmed, at the costs of the appellant.