Hagemann's Appeal

88 Pa. 21 | Pa. | 1879

Mr. Justice Mercur

delivered the opinion of the court, January 6th 1879.

This contention arises in the distribution of the estate of Conrad Schad. It is whether the assignee of a judgment recovered on a municipal lien, acquires all the substantial rights of lien as fully as the same were held by the assignor.

The city of Pittsburgh held two judgments against Schad. They were based on municipal claim's filed under the Act of 6th January 1864, Pamph. L. 1131; scire facias had issued thereon, judgments had been obtained, executions had issued, and the property of Schad was advertised to be sold. On the day preceding the sale Schad went to the appellant and besought him to advance the money, and prevent a sacrifice of his property. In pursuance of this urgent request, and as a favor to Schad, the appellant paid the money to the attorney of the plaintiff, in the judgments, who was also city solicitor, and took from him an assignment thereof. The Act of Assembly referred to expressly directs these claims to be placed in the hands of the city solicitor, for him to collect and pay damages. In this case it is conceded that the city solicitor paid over the money in pursuance of law. The city makes no complaint. The cbntention is between the assignee and other creditors of Schad. The court below held the assignments were not void, and if it were the case of ordinary liens, his assignments might be ratified by the receipt of the money by his principal; but that these liens were not of such a, character. It conceded the assignment to be effectual so far as to pass to the assignee a right to the money due on the judgments, and therefore allowed to them a pro rata share in the fund, yet held the judgments lost that priority of lien which they had when in the hands of the city.

This presents the question for consideration.

The act provides, inter alia, for the widening, extending, grading and paving of streets in the city of Pittsburgh, and for assessing the costs and expenses thereof on the property, benefited thereby. It also declared the assessments thus made should be liens on the properties charged therewith from the commencement of the improvement for which they were made. The court thought the power to make and collect these assessments was an attribute of sovereignty, and could not be .delegated or exercised by any other than the city ; and as it had received the money, it mattered not. in what manner the priority of lien was extinguished. It thought to hold the full claim of the city in these judgments could be assigned would be hazardous to the person against whose property the claim was assessed, and to the public. It will, however, be observed that this was not an ordinary tax imposed for. a public .purpose. It was- a municipal charge for the benefit of lot-holders on. the particular street. The assessment was intended as an equivalent from the owner, for tho improvement made to the value of his property. They were not to be collected like public taxes. The act directed the liens to be filed in the District Court of the county, in the same manner as mechanic’s liens are filed, and that writs of scire facias and levari facias be issued thereon, in like manner. Hence the mode of assessment to' pay some persons damaged by .the improvement, as well as the manner of their collection, distinguish these assessments from public taxes generally: The Northern Liberties v. St. John’s Church, 1 Harris 104. Conceding, however,, in a broad sense, that in their inception, these assessments may be considered as taxes, how stands the case ? When the assignment was made the claim had changed its form. It had not only become a judgment in rent ripe for execution; but the latter had actually issued. The collection of the judgment was to. be enforced like other judgments in rein. Nf> unusual powers of sale attached to the judgment. Its only preference over a mechanic’s lien was its. priority.

The facts show -this is not. the-, case of one buying a tax. against a tax-payer, without the knowledge or consent of the latter, and with a-view to enforce unusual remedies against him ; but it was the purchase of judgments with restricted remedies, at the earnest solicitation of the defendant therein.

Granting then that it would be against the policy of the law to permit a municipality to become “a farmer of taxes” and to sell and transfer against the wishes of the tax-payer, a tax, with harsh or unusual powers for its collection, yet that is not this case. . The law gave to the city one mode only for the collection of these assessments. It created no personal liability. The lien of the judgments and right of sale were limited to the specific properties described. To prevent the city from selling the property at a sacrifice, at the urgent request of the defendant in the judgments, and to give him further time for their payment, the appellant advanced the money. Both parties to the judgments were satisfied. What right has a third person to complain? The interposition of the appellant worked no injury to other creditors. Without any action on his part, the judgments were preferred liens. The defendant therein, to further his own interests, and to the prejudice of no one, caused the equitable right of enforcing the liens resting on his property to be transferred to the appellant. Under all the circumstances we cannot see that any principle of public policy was thereby assailed. If not, then all the incidents of the preferred liens passed with the assignments to the appellant.

Decree reversed, with instructions that distribution be made conformably with this opinion ; and it is ordered that the appellees pay the costs of this appeal.