67 Neb. 469 | Neb. | 1903
This is an action brought by the city of Lincoln to foreclose a lien for certain special assessments, or paving taxes, against the Lincoln Street-Railway Company, the New York Security & Trust Company, the New York Guaranty & Indemnity Company, Brad D. Slaughter, receiver, and the Lincoln Traction Company. At a former trial in the district court for Lancaster county a decree was rendered in favor of the city for about $108,000, and it was awarded a first lien for that sum on all of the property of the street-railway owned by the consolidated company, and after-wards purchased by the persons who formed the Lincoln Traction Company. From that decree the defendants prosecuted error to this court, and on the hearing the decree of the trial court was reversed and the cause was remanded
Most of the questions presented herein were decided in our former opinion, Avhich is reported in 61 Nebraska, at page 109. It appears that, prior to the year 1891, several corporations, under different names, had acquired franchises for the purpose of constructing and operating lines of street-railway in the city of Lincoln; that all but one of them had constructed a portion of their lines, and were operating them Avith horse-cars; that early in that year one P. W. Little, acting for a company or syndicate known as P. W. Little & Co., purchased all of said franchises and lines of street-railAvay which had been constructed by the several companies, and merged them into one corporation, called the Lincoln Street-Rail AAmy Company, with the single exception of the lines oAvned by a corporation called the Rapid Transit Company; that said lines were recon-
Counsel for the city contend that the court erred in refusing to allow plaintiff to withdraw from a portion of the written stipulation made by the parties herein, and upon which the former trial was had. We take up this question a little out of its regular order, because many of the other assignments presented herein will be settled by the determination of this one.' The record sIioavs that counsel for the city, before the case Avas called for trial, filed an application to be permitted to AvithdraAV from paragraphs 15 and 16 of the stipulation. The court overruled and denied the application. The city excepted and noAV strenuously urges that such ruling Avas reversible error. An examination of the bill of exceptions, discloses that the stipulation contained thirty-eight paragraphs and covered 213 pages of the record ; that by its use the city Avas saved the trouble and expense of proving its ordinances and resolutions, tbe engineer’s estimates, the assessments in question, the time and manner of making them, and the amount due thereon. In fact, it appears that the city ob- j tained such substantial benefits and concessions thereby/ that the trial court must have deemed it unjust and in-: equitable to alloAV it to AvithdraAV rom the two paragraphs in question and retain the benefits accruing to it by the other portions thereof. In Gerdtzen v. Cockrell, 52 N. W. Rep. [Minn.], 930, the court held that one party to a stipulation or an agreement could not be released therefrom on the ground of a mistake, and still leave the other party bound thereby; that his remedy was not by motion
The city now claims that the mortgage to the NeAV York Security & Trust Company is void for illegality. No such claim was made upon the first trial in the district court, or upon the former hearing before us; but after the case Avas remanded to the district court for a new trial, counsel for the city filed a supplemental petition, to which the defendants filed an answer, and in reply to this answer it Avas alleged that the mortgage was void. This question Aims thereupon litigated in the trial court, and resulted in a finding against the city. Defendants contend that this question could not be raised for the first time by the reply, and, technically speaking, this may be true; but as long as the question is before us, we may as Avell determine it upon
The second consideration urged upon our attention as a reason for holding the mortgage void, is that the prop: erty and franchises were inalienable. This contention is based on the folloAving premises: That the ordinance under AAdiich the electors of the city of Lincoln voted to authorize the street-railway companies to construct their lines upon the streets of the city, together Avith its adoption by the popular vote, in effect created the charters of the street-railway companies, and was the source of their franchises; that the ordinance contained no privilege of alienation; that these matters amounted to a contract between the city and the street-railway companies; that the franchises and privileges were personal to the companies to which they were granted, and, therefore, could not be alienated or transferred; and that the legislature, by a subsequent act, authorizing street-railway companies to alienate or mortgage their property and franchises, could not confer such a right upon the companies or those who purchased their franchises so acquired. This question Avas
The third contention is that the mortgage was given to
It is further contended that the mortgage is void because it was for an amount in excess of that authorized by law. The evidence does not sustain this claim, so far as we can ascertain from the bill of exceptions. Therefore this con
It is contended by the city that the lien of the mortgage did not attach to the property of the defendant until some time subsequent to the 20th day of July, 1891; that the court erred in its finding that it became a lien thereon at that date. By the terms of the stipulation the court was required to fix that date as the time when the mortgage of the New York Security & Trust Company became a lien on the property. Having upheld the stipulation, the finding of the trial court upon that question must be sustained. But waiving the stipulation, we are satisfied that the city failed in its attempt to show that it did not become a lien until a later date. The evidence discloses that the mortgage was delivered to the trust company on July 20, 1891, and that the bonds secured by it were sold to the purchasers thereof for value. The dates of said sales are not shown. It follows that we must hold that the mortgage became a lien from the time it was delivered and recorded, which was July 20, 1891. Jones, Mortgages [6th ed.], sec. 374; Omaha Coal, Coke & Lime Co. v. Suess, 54 Nebr., 379. In the case of Pittsburgh, C., C. & St. L. R. Co. v. Lynde, 55 Ohio St., 23, the supreme court of Ohio held that: “The bonds of am Ohio railroad corporation, payable in New York city to bearer, are negotiable without indorsement, although sealed with the corporate seal, notwithstanding that they were made in 1864, while section 1 of
The contention is made that the court erred in holding that the New York Security & Trust Company’s mortgage takes precedence over the lien of the special assessments made subsequent to the execution and delivery thereof. This question is settled by our former decision. The language of Judge Holcomb on that branch of the case is as follows (p. 159) : “The statute on the subject is as follows: “No mortgage, conveyance, pledge, transfer or in-cumbrance of any such property of any such company or person, or of any of its rolling stock or personal property, created or suffered by any such company, or party, after the time when any street or part thereof, upon which any such street-railway shall have been laid, shall have been ordered paved, repaved, macadamized, or repaired, shall be made or suffered, except subject to the actual or prospective lien of such special taxes, whether actually levied or not if such levy be in contemplation.’ Compiled Statutes 1899, ch. 13®, art. 1, sec. 79. The lien on the property assessed is only by virtue of the statute. The legislature has, for reasons no doubt appearing to it as sufficient and satisfactory, enacted that the tax lien should be prior if the improvement is in contemplation, whether the taxes are actually levied or not. By the language used it is contemplated that if the improvement has been projected and is under way, that is, if the street ‘shall have been ordered paved,’ no lien shall be created except subject to the pros
Complaint is made because the court found that the paving taxes were not a lien on the personal property of the street-railway company. Section 77 of chapter 11 of the Session Laws of 1887 which creates the lien, reads as follows: “Special taxes for the purpose of paying the costs of any such paving, repaving, macadamizing or repairing of any such street-railway may be levied upon the track including the ties, iron, road-bed and right of way, sidetracks, and appurtenances, including buildings, and real estate belonging to any such company or person, and used for the purpose of such street-railway business, all as one property, or upon such part of such tracks, appurtenances, and property as may be within the district paved, repaved, macadamized, or repaired, or any part thereof, and shall be a lien upon the property upon which levied from the time of the levy until satisfied.” And it is claimed that the word “appurtenances,” used therein, should be construed to mean the personal property, including the rolling stock, of the defendant company. It must be conceded that the word, in its ordinary sense, does not mean personal property; the term “appurtenance” signifies something pertaining to another thing as principal, and which passes as incident to the principal thing, which is different, but of a congruous nature. Thus a deed conveying land and its appurtenances conveys only such things in the nature of fixtures as are appurtenant to the land itself. It does not convey the personal property or effects of the grantor, although they are situated upon the land at the time the conveyance takes effect. It is insisted that the word “appurtenances,” as used in the statute in this- case, means personal property, because in the same act, speaking of a mortgage given by a street-railway company, the language of the statute is that “no mortgage, conveyance, pledge, transfer, or incumbrance of any such property of any such company, or person, or of
It is next contended by the city that the finding by the court which gives the defendant the Lincoln Street-Railway Company credit for $5,000 on account of a payment on the taxes which are a first lien on its lines, is erroneous, and is not sustained by the evidence. It appears that an attempt was made to compromise all of the matters in controversy in this suit; that it was agreed that the defendant the Lincoln Street-Railway Company should pay the city $65,000 in instalments, and the whole claim for special assessments upon the receipt of that amount should be canceled. On this agreement $5,000 was paid into the city treasury. The city was then enjoined by a taxpayer from carrying out the agreement. Under this condition of affairs, the defendant had the right either to withdraw this payment, or have it applied in satisfaction of the debt, as it might see fit to direct. It chose to have it applied in payment of a part of the special assessments, which this court had declared to be a lien on its property prior to the mortgage of the New York Security & Trust
Q. Mr. Humpe, do you remember whether or not any tender or deposit of money has been made by any of the defendants on any of the taxes involved in this litigation?
A. Yes, sir.
Q. What amount?
A. $5,000 paid.
Q. Paid to whom?
A. Paid to Mr. Aitken, city treasurer.
Q. I mil ask you if you remember about when the decision of the supreme court was rendered in this case; the record of it being January 4,1901. Do you remember that decision was made?
A. Yes, sir. I remember the fact.
Q. Well, what, if anything, did you do or say with reference to this command — with reference to this $5,000 payment to the city treasurer of Lincoln?
A. After the decision of the supreme court had been rendered, I asked to have the $5,000 applied on these districts which were covered by the decision of the supreme court, as being against the property owned by the Lincoln Traction Company.
Q. Prior to the giving of the mortgage?
A. Yes, sir.
Q. That is, the lien for taxes that existed prior to the giving of the mortgage that was foreclosed, and the Lincoln Traction Company made its purchase under?
A. Yes, sir.
“The debtor may, at or before the time of payment, prescribe the application of such payment, and it is the duty of the creditor to so apply it.” 18 Am. & Eng. Ency. Law [1st ed.], 234.
“If the creditor receives money with a direction from the debtor to appropriate it to a particular debt, it must go to that debt, no matter what the creditor may say at the time; and an appropriation once made by the debtor can
The supreme court of Ohio, in the case of Stewart v. Hopkins, 30 Ohio St., 502, passing upon this question, says: “The creditor can not divert a payment so made by his debtor, from the appropriation made by him, upon mere equitable considerations, that do not amount to an agreement between the parties giving the creditor a right to appropriate the payment otherwise than directed by the debtor, though mere equitable considerations may control where the payment is made without designating its application.” This rule is recognized and followed in this state in the case of Life Ins. Clearing Co. v. Altschuler, 55 Nebr., 341. The direction to the city, treasurer, as shown by the evidence above quoted, was specific enough to require the city to credit the payment on the assessments which had been declared by this court to be a first lien on the defendant’s lines of street-railway. We are unable to say that the finding of the court that this money should be so applied was clearly wrong, and, therefore, it should be sustained.
The trial court found that the remainder due on the assessments against the Rapid Transit Company ivas $37,-352.63, and gave the city a third lien on the property of the Lincoln Street-Railway Company, acquired by the traction company by the foreclosure proceedings in the federal court. Both parties complain of this part of the decree. The city excepts because it ivas not given a first lien on the property described in the first finding of facts, and in the first conclusion of law, and the traction company complains because the remainder due on account of said special taxes was not canceled by the decree. It appears that the city, by a cross-bill filed in an action pending in the federal court against the Home Street-Railway Company, which owned a portion of the original Rapid Transit lines of street-railway, obtained a decree giving it a first lien on
It is contended by the defendant companies, on their appeal herein, that the court erred in giving the city a first lien for the paving taxes in paving districts 2.1 and 22. The trial court found that these assessments were in contemplation when the mortgage was given to the New York Security & Trust Company. The statute creating the lien, as above stated, expressly makes it superior to that of the mortgage, and the court did not err in so holding.
It is further claimed by defendants that a part of the tax is void because it includes the cost of paving one foot outside of the rails of the street-car lines. It is sufficient to say that an examination of the question discloses that at the time this paving was done the statute, in express terms, provided that the company should pave one foot outside of its rails. Session Laws, 1887, ch. 11, sec. 76. Therefore it can not be claimed that the assessment objected to was void.
It is contended on the part of the city that the court erred in not giving it a personal judgment for a certain part of the taxes. It is sufficient to say that no such judgment was asked for in the pleadings. Again, the trac
•After a laborious reading of the record and bill of exceptions, and a careful examination of all of the matters involved herein, we find that the trial was fairly conducted ; that the findings and the decree of the trial court are sustained by the evidence and are in substantial accord with the law of the case as set forth in our former opinion. We therefore recommend that the decree of the district court be, in all things, affirmed.
For the reasons given in the foregoing opinion, the judgment and decree of the district court is
Affirmed.
Cobbey’s Annotated Statutes, sec. 10088; Compiled Statutes, ch. 72, art. 7, sec. 11.
As amended, see Cobbey’s Annotated Statutes, secs. 10078 et seq.
Session Laws, 1887, ch. 11, sec. 77.
Cobbey’s Annotated Statutes, sec. 10085.