161 So. 759 | La. | 1935
The Court of Appeal for the Second Circuit, under authority of section 25 of article 7 of the Constitution, has propounded the question, whether two paving liens affecting a corner lot are of equal rank, and, if not, which one of them is the superior lien, the fact being that the municipal ordinance levying the assessment for the paving of one of the adjacent streets was recorded at a date subsequent to the recording of the ordinance levying the assessment for the paving of the other adjacent street, each ordinance, however, being recorded within the time prescribed by the statute. Act No. 27 of 1915, Ex. Sess., § 4. The statute provides that a certified copy of the ordinance levying the assessment for street improvement shall be filed within ten days for record in the office of the recorder of mortgages, and, when so filed and recorded, shall be a lien which "shall prime all other claims except taxes."
This is the first case in which the question has arisen in Louisiana. It is said in the briefs filed by the attorneys in the case that in other jurisdictions the question has been answered three ways, some courts holding that the two liens rank in the order in which they were recorded, other courts holding that the two liens rank in the inverse order in which they were created, and other courts holding that the two liens are of equal rank, regardless of the order in which they were created or recorded, provided they were both recorded within the time prescribed by the statute on the subject.
Two decisions are cited as if maintaining that the two liens, in a case like this, should rank in the order of registry; but these decisions *292
do not refer to pavement liens. Both cases were decided by the Supreme Court of Iowa, viz., City of Charles City v. Ramsay, 199 Iowa, 722,
The rule that pavement liens in a case like this take rank in the inverse order of assessment is said to prevail in Indiana, Missouri, and California. The Indiana cases cited are Burke v. Lukens,
"The reason for the rule denying priority in such cases is that the property was assessed upon the theory of benefits, and that every improvement of this character enhances the value of the property to the extent of such assessment. From this conclusion it follows that the property mentioned in this case was increased in value to the extent of the assessment for both improvements, and the security for the payment of liens growing out of one was augmented by the other. The conclusion reached is not unfair to the party making the last improvement, as he was charged with notice of the first improvement liens outstanding (City of Elkhart v. Wickwire,
The Missouri cases cited are Jaicks v. Oppenheimer, 264 Mo. 693, 175 S.W. 972, decided by the Supreme Court of Missouri in 1915, and Redemeier v. Perkinson, 186 S.W. 1107, decided by the St. Louis Court of Appeals in 1916. That court, of course, merely adopted the ruling made by the Supreme Court in Jaicks v. Oppenheimer. Only three of the seven members of the court concurred in the opinion rendered in Jaicks v. Oppenheimer; another member concurred in the result; and three members dissented, one of them writing a dissenting opinion. The prevailing opinion *294 in that case was founded upon the theory that liens securing special assessments for local improvements were of the same character and dignity as were tax liens securing the payment of general taxes. As to general taxes, of course, the collection of current revenue is of paramount importance, but that has nothing to do with special assessments for local improvements.
In the California case cited, Woodill Hulse Electric Co. v. Young,
"The necessity of collecting revenue for the support of the government imperatively requires that the lien for taxes shall take precedence over all other liens, and that a tax sale, followed by a proper conveyance, shall transfer the title discharged of prior tax liens. If the rule were otherwise, purchasers at tax sales would be deterred from bidding, and a large portion of the revenue would remain uncollected."
Then the court, in Woodill Hulse Electric Co. v. Young, declared that street assessment liens were governed by the same rule of precedence that governed general tax liens, for the reason that a street assessment was for a public purpose, and was a charge not against any person, as owner of the property or otherwise, but against the *295 property itself. It does not impress us, however, that the analogy, to that extent, between general tax liens and street assessment liens, has much to do with the reason for the rule of precedence with regard to general tax liens, i.e., the necessity for collecting the current revenue for the support of the government.
In Hollenbeck v. City of Seattle,
"The rule of inverse priority is based upon the imperative necessity of collecting revenue for the support of the government. Annual levies are made for the purpose of providing funds for current expenditures, and a failure to collect current revenues might destroy the very government itself. Hence the rule is one of necessity, and should not be extended beyond what necessity requires. Moreover, special assessment liens are to be differentiated from general tax liens by the fact that the lien is created upon the theory that a corresponding benefit attaches to the property assessed, and the improvement is constructed upon the sole credit of the property benefited. Either the contractor who performs the work takes the warrants and the bonds in payment therefor, or, if the security is passed to other investors, still they are purchasing upon the credit of the property especially benefited, and a third interest, that of the bondholder, is injected. Manifestly, there is no necessity for applying the inverse order rule, because governmental funds *296
have not been expended, and the moneys to be collected go not to the government but to the private investor. The only investment is that of private parties, made on the faith and credit of the property benefited, and good faith and good morals demand that these investors should have all of the security which the statute gives them. As recognized in Seattle v. Everett, supra [
The best reasoning on this subject is in the decisions maintaining that liens arising from assessments for street improvement, in a case like this, are of equal rank, regardless of the relative dates of assessment or of registry of the liens. Mortgages, either conventional or judicial mortgages, take rank in the order in which they are recorded; but *297
liens, unlike mortgages, are ranked in the order fixed by the statutes creating them. It is declared in article
Our interpretation of the expression in section 4 of Act No. 27 of 1915, that pavement liens "shall prime all other claims except taxes," is that pavement liens shall not prime one another, according to date of registry, but shall be all of equal rank, subordinate only to the general tax lien. It is not often that one pavement lien comes in conflict with another pavement lien, because, as a general rule, the pavement affecting any one lot is all done under one ordinance. But, when, as in this case, two separate liens have arisen, respectively, from the paving at different times, of two streets adjacent to one and the same lot, the two liens are of equal rank. The reason for that is that both of the pavement liens are superior in rank to all other liens except the general tax lien, and hence neither of the pavement liens is inferior to the other.
Our answer to the question propounded by the Court of Appeal, therefore, is that the two pavement liens are of equal rank.
FOURNET, J., dissents. *298
