179 Iowa 838 | Iowa | 1917
Though the petition does not specifically state that the deed was accepted by appellants, such is the fair inference from reading the entire petition. The petition alleges that, bj’ virtue of the proceedings of the board of supervisors in the establishment of said drainage district, the lands which defendant sold by the contract to plaintiffs have been charged with special assessments aggregating $2,900 or more, so that it would seem that'the deed must-have been accepted; otherwise' the assessment could not have, been made against plaintiffs. Furthermore, appellants ah’ lege in the second count that defendant held title from the date of the contract to the date of the deed as trustee, and that, as such trustee, defendant was .under a legal .duty to file claims for damages. In the second count they also allege that appellee executed a deed in conformity to the contract. The plain inference is that plaintiffs have held the legal title to the land since March 1, 1911.
From the allegations in the petition, it is uncertain, as. to whether or not the establishment of the levee district had been so far advanced that the tax had been assessed and levied against the lands included in the district at ;the: time the conveyance was made, by the deed of February 28,
“Comes now the defendant and demurs to Count 1 of petition, and shows to the court the following grounds therefor:
“(1) The facts stated do not entitle the plaintiffs to the relief demanded, for the reason that the facts stated show that the defendant executed and delivered them a deed in accordance with the contract. After this was done, no action remained on the contract^ because the vendee took for his security of title the deed with such covenants and warranty as his contract called for.
“(2) The facts stated do not show that a good and
“As to Count 2, the facts stated do not show that there was any duty on the part of the defendant to file a claim for damages with the board of supervisors.”
I.The argument of appellants rests in the main upon the following propositions:
1. That only the record owner of land can file a claim for damages for the location of a ditch in a drainage proceeding, and that a merely equitable owner under an executory contract cannot file such claim.
2. That, because the defendant was the record owner, it was his duty as a trustee holding the legal title to file a claim in his own name for the benefit of the plaintiffs.
3. That, because of the establishment of the ditch and dike, the defendant failed to convey all the land which he had contracted to convey, and that, therefore, there was a breach of the contract, notwithstanding the acceptance of the deed.
The argument in support of the first of the above prop-, ositions is that only the record owner of land is entitled to notice, and, therefore, only the record owner can be heard to claim damages. We disagree with both premise and conclusion. Section 1989-a3, Code Supp., 1913, does provide in effect for notice to be given by name “to the owner of each tract * * * as shown by the transfer books of the auditor’s office * * * and also to all other persons whom it may concern * * * (without naming individuals) .” The same section recognizes the rights of “other persons owning or having an interest in any land or property affected” by providing a method whereby they may receive through an agent 20 days’ notice if they file with the auditor the name and address of such proposed agent. While this section of the statute only provides for notice by name to persons whose names appear upon the transfer books
In Wolfe v. Iowa R. & L. Co., 178 Iowa 1, which was a railway condemnation proceeding, we went into this question fully. We held therein that the purchaser of land under an executory contract was entitled to claim damages for such condemnation, aiid was entitled to prosecute an appeal from the award of the sheriff’s jury as such equitable owner. In that case, the Wolfes were the purchasers
“It is manifest from the foregoing that the legal title of the farm in question rested in Maybauer until March 1, 3911. It is also manifest that the contract in question was obligatory upon, and enforceable against, both parties thereto. Neither party could escape the provisions of this contract except by the subsequent consent of the other. Such subsequent consent would amount only to a subsequent contract. Under this contract, the full beneficial interest of Maybauer in the land was the agreed purchase price to be paid. Under the same contract, the Wolfes became subjed to every future unfavorable contingency, and entitled to the benefit of every favorable one. Future depreciation of value would fall upon them. Future appreciation would inure to them. Future appreciation or depreciation could affect Maybauer only as affecting his security for the purchase price. The contract was entered into before the appropriation of the right of way. It was known to the parties that a location of a right of way was in prospect as a possibility, but no rights had been asserted by or accrued to the railway company. In the absence of a contrary provision in the contract, it would seem too clear for dispute that if, after the execution of such binding contract, the premises should be depreciated by the appropriation of a right of way, the damages accruing by reason of such appropriation should accrue to the purchasers, to the extent at least of having the same applied in reduction of the purchase price. * * * In the case before us, it is not very material whether we call the Wolfes the equitable owners of the land or whether we characterize their interest by some other term. They did have a fixed and vested interest in the real estate as such. Their interest was clearly affected by the appropriation of the right of way across such farm. The mutual rights of the plaintiff Maybauer and the Wolfes
The ground of the holding in that case is applicable here; likewise the quotations from the authorities which are included in the opinion. We are of opinion, therefore, that the equitable owner of land under executory contract is entitled to protect his interest therein in drainage proceedings precisely as any other owner.
II. Turning now to the question of trusteeship of the seller for the purchaser, and the duty of the seller to file claim for the benefit of the purchaser: The petition is predicated upon the theory that the seller was under legal duty as trustee to file such claim for the benefit of the purchaser because, under the law, the seller could; and the purchaser could not, file such claim. The case made by the petition is, briefly, that the contract of the parties was entered into on August 17, 1910; that, prior to this time, the proceedings had been begun, and notices had been given. All this was in the past. If, prior to August 17, 1910, the defendant had been negligent of his own interest, and had failed to file a claim when, in prudence, he ought to have done so, or had conceived a purpose not to file a claim for reasons satisfactory to himself, then plaintiffs are in no position to complain of that. No past dereliction of the defendant could give rise to a cause of action in their favor. If the defendant is liable to them, it is due to some dereliction arising at the time he entered into the contract and became their trustee. Whether or not the plaintiffs knew that
Ordinarily, a vendor in such a case, especially if he be in possession, is bound to pay the taxes or liens which attach to the land, in the interim between the making of the contract and the execution of the deed, for the reason that assessments to be made in proceedings in process are pre
This rule is especially applicable in an exchange of properties. What is the rule as to special assessments? They are conclusively held to have been of benefit to the land, and that the land has been benefited to the extent thereof; but they are, nevertheless, liens or encumbrances against the property, and the question in cases of transfer pending their establishment is, Which party is to pay for them, the vendor or the purchaser? This all depends, of course, upon the construction of the contract between the parties, if it is silent on the point. The authorities are. conflicting upon this proposition, or rather upon the ; construction which should be placed upon such a contract as ¡ is here before us. In some of the states it is held that such 1 assessments do not become liens until they are ascertained in the manner prescribed by law, and that, under such contracts, the vendee, under an executory contract, must pay such as were ascertained after the deed is due. See Lathers v. Keogh, (N. Y.) 17 N E. 131; Gotthelf v. Stranahan, (N. Y.) 34 N. E. 286; Tull v. Royston, (Kans.) 2 Pac. 866.
On the other hand, it is held in many states that such assessments are liens from the time the improvements are
In Blackie’s case, supra, it is said that the liability to an assessment became an encumbrance at the time the order for the widening of a street was made. And in Carr’s case, supra, the same doctrine- was applied to a sewer assessment, the court saying that the assessment became an encumbrance when the order for 'the construction of the sewer was made. See, also, Cotting v. Commonwealth, (Mass.) 91 N. E. 900. Many of these cases turn, however, upon the construction of statutes, and, save for the strength of the reasoning found therein, have no special significance. Our statutes provide that, as between vendor and vendee, deferred -installments of special assessments shall become a lien on the 31st day of December of the year next preceding that in which it is due and payable. Sec. 19S9-al2, Code Supp., 1913. Again, Sec. 1989-a45, Code Supp., 1913, pro1 vides that special assessments for drainage purposes become a lien when levied, to the same extent and in the same manner as taxes levied for county and state purposes. And Sec. 1015, Code, 1897, provides that, as between vendor and vendee, general taxes become a lien on the 31st day of December folloAving the levy. But Sec. 816, Code Supp., 1913, provides that special assessments become a lien upon the filing of the proper papers with the county auditor. In view of these statutory provisions, and the allegations of the petition with reference to the time when the assessment was made, plaintiffs are not entitled to recover the amount of the
The. better rule, we think, is that, where nothing is said about such assessments, either in the contract or the deed, such as are levied after the contract and deed are executed do not constitute an encumbrance upon the property conveyed, for the reason that the grantee received the benefits resulting from the improvement, and he should pay the assessments therefor. Carey v. Gundlefinger, 12 Ind. App. 645; Gotthelf v. Stranahan, (N. Y.) 34 N. E. 286. This is the effect of the decision in Btuhr v. Butterfield, supra. Of course, much depends upon the nature of the contract and the intent of the parties. It may be that, if the improvement is completed at the time the contract is made, and all that remains to be done is to make the assessment, and the contract says nothing about the assessment, but the deed is one of general warranty, and it appears that the assessment was made intermediate between the contract and the deed, the vendor, or grantor, should be held liable for the taxes. This is pointed out in Gotthelfs case, supra. That case is an interesting one, and will bear reading. In Cemansky v. Fitch, 121 Iowa 186, it was held that a covenant against encumbrances is a covenant in praesenti, and does not include charges for street improvements, the lien for which had not attached. Much said in that case is applicable here. See, also, Eagle Mfg. Co. v. City of Davenport, 101 Iowa 493.
We reach the conclusion that the plaintiffs are not-entitled to recover upon either branch of the case. For these reasons, the judgment must be affirmed. — Affirmed.