35 Ind. App. 694 | Ind. Ct. App. | 1905
On May 4, 1893, the common council of the city of Dunkirk, Indiana, by unanimous vote, passed .and adopted a resolution declaring a necessity for the improvement of Broad street from Forth street to I street, in said city, and providing that the cost of such improvement be assessed per lineal front foot upon the real estate abutting •upon that part of Broad street to be improved, except the portions thereof occupied by street and alley crossings. Thereafter such proceedings were had in that regard that
Appellants contend that the description of the real estate in the alleged assessment made by the city council of Dunkirk was insufficient to form the basis of a lien, and because
It appears from the complaint and counterclaim that the city civil engineer of the city of Dunkirk, upon the completion of said improvement, made a report and final estimate to the common council of said city, showing that said improvement was completed in accordance with the contract and ordinance for the same, and that the following was the apportioned cost of said work to the property owners whose property abuts on said street. We here use the estimates for two of the eighty-eight lots to show the form of the report on the question of description:
Owner ' Description Eeet Per Foot Amount
Ben. Johnson, trustee ...
Lot 46 D.L.Co.Ad. 50 $1.75 $87.50
Ben. Johnson, trustee ...
Lot 47 D.L.Co.Ad. 50 1.75 87.50
It appears that Hie council adopted this report, and such proceedings were had that the cost of said improvement as apportioned to each lot by said engineer, was by the council assessed against each lot or parcel of ground bordering on the improved portion of said street. It further appears that thereafter, and within the time provided by statute, the appellant the Dunkirk Land Company executed a written waiver or agreement, and filed the same with the clerk of said city, in the words and figures following, to wit: “The undersigned, having been respectively assessed for the construction of Broad street from North to I street, in the city of Dunkirk, Jay county, Indiana, hereby severally promise and agree, in consideration of having the right to pay their respective assessments for said improvements in instalments, that, they will not make any objection to their respective assessments, as to the illegality or irregularity of the same,
In the Richcreek case, this court, in speaking of a waiver such as was filed in the case at bar, said: “Upon the execution of this waiver alone, depended the right of appellees to pay the assessment in instalments, and, having executed the agreement and release, [they] can not now be heard to question the regularity of the assessment. , ‘When the work is completed the property owner has his election to refuse to sign the agreement provided for, and stand upon his common-law rights in respect to contesting the validity of the assessments made against him, in which case the assessment becomes due when made, or he may waive any irregularities, and secure the benefit of ten years’ time by1 signing an agreement to that effect.’ Quill v. City of Indianapolis [1890], 124 Ind. 292.”
In Edward C. Jones Co. v. Perry, supra, this court reaffirmed the case of Richcreek v. Moorman, supra, when it said: “The assessed property owner could not, after signing the agreement contemplated by • §4294 Bums 1894 [Acts 1891, p. 323], be heard to question the irregularity or illegality of his assessment,” and held that a promise to pay, incorporated in a waiver such as here filed, amounts to an express contract founded upon a valid consideration unconditionally to pay the sum of money fixed by the assessment, without regard to any future contingency, and “creates a personal liability upon the part of the property owner whose property may be assessed under” the provisions of the statute here invoked. In the course of the opinion it
The reasoning of the court just quoted is applicable here. The purpose of the waiver is to give the property owner additional time to pay his apportioned part of the cost of the improvement. The filing of the waiver has that effect, and the city or contractor is powerless to prevent it. On neglect or failure to file such waiver within twenty days after date of the estimate, the contractor could have enforced payment of his debt under .the provisions of §4298 Burns 1894, Acts 1891, p. 323, and, in attempting to compel payment, had it appeared that his lien was ineffectual because of an error in the final estimate, called an “assessment,” the assessment could have been immediately amended or corrected, and the lien perfected and enforced without delay and the attending risk of a loss from a decrease in the value of the property avoided. Becker v. Baltimore, etc., R. Co., supra.
One of the very objects of the statute authorizing the
As to the right of appellees to have personal judgment against appellant Dunkirk Land Company there can be no doubt. Wayne County Sav. Bank v. Gas City Land Co. (1901), 156 Ind. 662; Edward C. Jones Co. v. Perry, supra.
As we understand said appellant’s brief, it is not insisting on the second cause stated in its demurrer.
The judgment in this case should be affirmed. Judgment affirmed'.