City of Jackson v. Kenny, No. 21155

No. 21155 | Miss. | Mar 15, 1920

Lead Opinion

Holden, J.,

delivered the opinion of the court.

This is a suit by the city of Jackson to enforce a lien against lot, 2 block 2, Scotland Heights survey, in Jackson, for an amount claimed to be due the city for the laying of an adjoining sidewalk. The city proceeded under the provisions of section .3413, Code of 1906', and in 1909 declared the laying of this sidewalk, and directed the street commissioner to give the proper notice to all the property owners concerned. The city, however, failed to spread upon its minutes an order directing the street commissioner to do the work, and failed to recite in its minutes the report of the street commissioner showing the exact account of the cost of the sidewalk construction. It appears now, after ten years, that the sidewalk was constructed by some one, possibly the city; but the minutes and records of the board of councilmen fail to disclose any apportionment of the cost of the sidewalk as between adjoining owners, and do not show any statement of the sum due by each of the abutting owners,, and show no assessment of the amount due against the lot here in question.

In the meantime the lot involved has changed ownership several times, and at the present time the title is in the appellee, an innocent purchaser without notice of any lien or incumbrance upon the property in favor of the city. It further appears from the record that, when the sidewalk was laid, J. E. Bourne, the then owner, executed two notes in favor of the city for the payment of the amount expended by the city in the construction of the sidewalk. Said notes provided a lien against said lot for the payment of the amount due; but these notes were not recorded on the public records of the county, nor was the present owner of the lot notified, either constructively or actually, of the existence of the notes or the lien.

The city cannot recover against the appellee, because it failed to comply with the provisions and requirements of section 3413, when read in connection with sections 3411 and 3412:, Code of 1906, under which it proceeded to make the improvement at the expense of the abutting property owners. There appears to have been no order spread upon the minutes of the board of councilmlen directing the construction of the sidewalk, nor was there any order on the minutes showing the exact account of the cost of laying the sidewalk, and, finally, nowhere do we find any assessment of the amount due miade against the lot.

In order for the abutting property to be liable for the construction of the sidewalk adjoining it, there must be a substantial compliance with the law with reference to an apportionment of the cost of the sidewalk as between the abutting owners, and the exact amount due against each separate lot must be ascertained and an assessment made of the amount against the lot. All of these things must appear upon the minutes of the board, as required by-section 3413, Code of 1906; otherwise, no statutory lien attaches against the lot, and where the title thereto has passed into the hands of an innocent purchaser no lien lies against the lot.

The suit for the amount due the city on the notes could no doubt be maintained against the maker; but the appellee being a purchaser without notice, and the city having failed to follow the requirements of the statute, which was necessary in order to impress the lot with a paramount lien for the construction of the sidewalk, this proceeding against the lot is not maintainable.

The judgment of the lower court is affirmed.

Affirmed.

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Dissenting Opinion

Smith, C. J.

(dissenting).

The purchaser for value without notice doctrine has no application here. If the city obtained a lien on the lot here in question while owned by Bourne, it can be enforced against subsequent purchasers thereof, whether they had or had not notice of the lien when they purchased. As I understood this record, the minutes of the board, of aldermen contain no order directing the street commissioner to construct the sidewalk, nor any order assessing the owner of the property with the costs of constructing the sidewalk. Section 3413, Code of 1906, under which the sidewalk was built, does not on its face require an order assessing the costs of construction, and I do not think it necessary for us to decide whether or not the requirement therefor in the preceding section of the Code must be read into it, for the reason that Bourne, the property owner, waived any right he may have had on that score when he executed the lien notes to tbe city covering his portion of the costs of construction, in which he admitted that the sidewall?; had been constructed by the city, and that his portion of the costs thereof was the amount for which the notes were given.

X am of the opinion, therefore, that the judgment of the court below should be reversed.