121 Iowa 186 | Iowa | 1903
The defendant was owner of lot nine of block seven in Sioux City, and on the 22d day of January, 1900, conveyed it to th'e plaintiff by warranty deed, covenanting perfect title, “free and clear of all liens and incum-brances,” and “to warrant and defend the title to said premises against the lawful claims of all persons whomsoever.” Prior thereto, in September, 1899, the city council had ordered the construction of a cement sidewalk in front of the lot, and, as the owner did not build it, had caused it to be constructed in November of that year. In August following, the council assessed the cost against the lot, and a transcript of the entire proceedings, duly certified by the city clerk, was filed with the county auditor. Such cost was duly entered on the books of the auditor and treasurer as a tax against the premises. The defendant having refused to satisfy the same, the plaintiff paid the amount assessed,' being $98.38, including interest and penalties. The defendant demurred, to a petition stating
Special assessments do not become liens save as so made by statutory authority. Eagle Mfg. Co. v. City of Davenport, 101 Iowa, 493. Formerly they became such when the work began. To obviate the difficulty of determining by parol evidence precisely when this happened, and in order to indicate the attachment by an appropriate record, section 816 of the Code was enacted, pointing out how and when the cost of such an improvement might be made a lien on the abutting property: “After a contract has been made by any city for the‘making or reconstruction of any street improvement or sewer, the clerk shall file with the auditor of the county, or each of the counties, i-n which said city is situated, a written or printed copy of the notice of the resolution provided for, with a true copy of the proof of publication thereof, together with a certificate of the clerk that an ordinance or resolution has been adopted directing the making or reconstruction of said street improvement or sewer. Thereupon al> special taxes for the cost thereof, or any part of said cost, which are to be assessed or levied against real property, or any railway or street railway, together with all interest and penalties on all of said assessments, shall become and remain a lien on such property from the date of the filing of said papers with the county auditor until paid, and shall have precedence over all other liens except ordinary taxes, which shall
But appellee argues that the right to have the cost of the sidewalk established as a lien was an incumbrance, or, at least, a “lawful claim,’’against the property. An in-cumbrance is “any right to, or interest in, land which may subsist in third persons to the diminution in value of the land, though consistent with the passing.of the fee by a deed of conveyance.” But a mere possibility of establishing a right to, or interest in, land is not within this definition. Ihe covenant against liens and incumbrances is a covenant in prmenti, and does not relate to those which may thereafter attach. If broken at all, it is broken when the conveyance is executed. Ingalls v. Cooke, 21 Iowa, 560; Barlow v. Bank, 63 N. Y. 399 (20 Am. Rep. 547). That an assessment may be levied and an incumbrance subsequently created by following the statutory provisions does not amount to a present incumbrance. Cadmus v. Fagan, supra.
Appellee further argues that the cost was at least a claim against the property, and therefore within “the covenant to warrant and defend the title to the said premises against the lawful claims of all persons whomsoever.” But the “lawful claims” contemplated are those to the title conveyed, and not to mere charges, which may or may not be established as liens thereon. Jones on Real Property, sections 892, 893; Meservey v. Snell, 94 Iowa, 222; Leddy v. Enos, 6 Wash. 247 (33 Pac. Rep. 508, 34 Pac. Rep. 665); Zabriskie v. Baudendistel, (N. J. Ch.) 20 Atl. Rep. 163.
One of the objects of the Legislature in. defining precisely when the lien for street improvements attach to the abutting property must have been the determination of