226 N.W. 70 | Iowa | 1929
The facts are stipulated in this case, and it is conceded that the plaintiff-appellee, W.E. Cooper, is the executor of the estate of Phebe Barton, who held a life estate in the land involved herein, to wit: a 65-acre tract which was included in Drainage District No. 11 in Shelby County, Iowa. The defendant-appellants are the owners in common of the remainder in said land. Phebe Barton, the life tenant, died December 25, 1923. The drainage district in question was established April 6, 1920. The board of supervisors of Shelby County, Iowa, acting as a drainage board, made assessments for benefits against the land included in said district. Said assessments were payable in ten equal installments, the first payment being due on the land involved herein on March 31, 1922, in the principal sum of $256.29, with interest, $102.30, and the second installment being due March 31, 1923, in the principal sum of $
On December 8, 1926, no redemption having been made, one L.J. Smith, purchaser at the tax sale, received a tax deed to said land.
What is the rule governing the instant facts? This was a permanent public improvement. It increased the value of the remainder, and the general rule is that a special assessment for such an improvement should be borne ratably between the life tenant and the remaindermen, in proportion to the benefit accruing to each. Furthermore, the proper apportionment of the liability between the life tenant and the remaindermen is for the life tenant to pay the interest on the assessment during his life, and the remaindermen to pay the principal of the assessment as it becomes due. A fund created by special assessment for the construction of a drainage ditch is in the nature of a trust fund for the use and benefit of the property included in the drainage district; and where funds are received in excess of the amount needed, the funds should be returned to the parties who owned the land at the time the assessment was fixed and levied, in proportion to the amount paid by said parties. A public improvement assessment is not in the category of an ordinary tax on the property, for which the life tenant is liable (see Reddishv. John,
In passing, it may be said that, since the action in this case was commenced, the general assembly of Iowa has announced the policy applicable to this kind of a case; and, although these provisions are not controlling at this time in determining this case, nevertheless a policy is stated, consistent with reason and authority. Section 7489, Code of 1927.
The decree entered by the trial court is — Affirmed.
ALBERT, C.J., and STEVENS, FAVILLE, and MORLING, JJ., concur.