216 Pa. 489 | Pa. | 1907
Opinion by
This is an action of ejectment to recover possession of a lot of ground in the borough of Tarentum in Allegheny county.
During the tenancy of Kennedy, the borough of Tarentum laid a pavement on the footwalk in front of the premises. To collect the expenses thus incurred, the borough filed a lien in the common pleas of Allegheny county on January 12, 1900, against the lot of ground for which this action was brought. The lien set forth a description of the lot, and the amount of the claim and penalty, $42.19, “ the sum aforesaid being a debt due the borough of Tarentum by James Kennedy, Sr., Samuel Meanor, Ann Meanor’s heirs and others unknown, owners and reputed owners, for work done and material furnished (with twenty per cent advance thereon, within thirty days last past, in and about the construction) grading, paving, curbing and guttering of a certain side or footwalk along said described property .... said work having been done and material furnished by said borough upon the failure of said James Kennedy et al. to do the same, and after due and regular notice to them so to do, as provided in the borough ordinance of February 25, 1898, .... the said James Kennedy and others as aforesaid being the actual or reputed owner and Isaac Johns being the occupier of said premises.” A scire facias was issued on the lien, January 12, 1900, to which the sheriff returned that he had served James Kennedy, Sr., and John B. Meanor and Isaac Johns by leaving a copy of the writ at their respective residences, and nihil habet as to Samuel Meanor and other defendants. An alias scire facias was issued to which the sheriff returned that he had served the writ on John Meanor and James Kennedy, Sr., by leaving a copy at their respective residences, and on Isaac Johns, occupier of the premises described in the writ, in the same manner, and by affixing a copy of the writ upon the door of the premises; and that he had served the writ upon Samuel Meanor, Ann Meanor’s heirs and others unknown, owners or reputed owners, by publication. Judgment was
This is a suit by the remainder-men, who are the heirs of Ann Meanor, deceased, to recover the premises sold and conveyed under the proceedings on the lien filed by the borough. The plaintiffs’ contention is that the claim for constructing the pavement on the footwallc is a personal debt of the life tenant, that the lien filed against the premises was to enforce payment of that debt and was not a proceeding strictly in rem, binding the interests of the remainder-men in the property, and hence the lien bound only the life interest of Samuel Meanor, and the sale on the judgment recovered on the lien sold only the estate of the life tenant in the premises. The life tenant having died, it is claimed that the remainder-men, the plaintiffs, are entitled to the possession of the lot.
The defendants contend that under the general borough Act of April 3, 1851, P. L. 320, the remainder-men as well as the life tenants were required to construct the pavement in front of the property, that the lien filed by the borough was a proceeding in rem and bound all the estates or interests in the property, that a sale on the scire facias issued on the judgment obtained on the lien conveyed all interests in the property to the purchaser, and that the judgment cannot be attacked collaterally in this action.
The court below being of opinion “that the record seems to show title in the defendant,” directed a verdict for the defendants upon which judgment was entered. The plaintiffs have taken this appeal.
The proceedings in this case resulting in a judgment and sale of the premises were taken under the general borough Act of April 3, 1851, P. L. 320, 1 Stewart’s Purdon, 494. Section 2 of the act provides, inter alia, that every borough shall have power: “ to require and direct the grading, curbing, paving and guttering of the side or footwalks by the owner or owners of the lots of ground respectively fronting thereon, in accordance with the general regulations prescribed; (and) to cause the same to be done on failure of the owners thereof, within
There can be no question of the authority of the borough under the act of 1851 to pave a sidewalk on failure of the owner of the premises to do so, and collect the expense from him in the manner directed by the statute. The language of the act is that the borough may require the paving of the sidewalk “ by the owner or owners of the lots of ground respectively fronting thereon,” and “cause the same to be done on failure of the owners thereof .... and collect the cost of work and materials .... from said owners.” We have held that the duty of laying a pavement on a sidewalk is imposed directly on the property owner; that an ordinance requiring the owner to lay such pavement is a police regulation; and that the amount expended in enforcing the ordinance is not a tax or a municipal assessment in the nature of a tax: Wilkinsburg Borough v. Home for Aged Women, 131 Pa. 109; Mt. Pleasant Boro. v. B. & O. R. R. Co., 138 Pa. 365 ; Phila v. Penna. Hospital, 143 Pa. 367. On the other hand, we have ruled that an assessment for the construction of a sewer or for paving the roadway of a street in front of a lot is a species of local taxation: Oliver Cemetery Co. v. Phila., 93 Pa. 129; Erie v. First Universalist Church, 105 Pa. 278; McKeesport Boro. v. Fidler, 147 Pa. 532.
In the case of a sidewalk, therefore, the claim is simply a personal obligation imposed on the owner of the premises by a police regulation for which, prior to the special remedy provided by the act of 1851, an action at common law would lie, and is not a debt for which the land is in the first instance liable. But the claim for constructing a sewer or paving the roadway is in the nature of a tax for which the land itself is debtor and the collection of which could not be enforced by a suit at common law. Keeping in view these important dis
As between the life tenant and the remainder-man, this court has determined it to be the duty of the former to lay a pave: ment on the sidewalk in front of a lot in the boroughs of this state. That question was raised and decided in 1854 in Hitner v. Ege, 23 Pa. 305, and is no longer open to discussion. In the opinion delivered by Lewis, J., reversing the trial court, it is said (p. 307): “ By the borough ordinance it is made the duty of the ‘ owner or occupier ’ to ‘ pave the sidewalk, with brick, within three months’ after the enactment. This duty may be enforced by a penalty. As Ege, the tenant, was thus bound to pave the sidewalk, it ivas not necessary that he should await the pleasure, of his landlord in this respect. As a tenant from year to year, his term was too brief to justify the court in charging him with the expense of the improvement, while the temporary character of the work, requiring repeated renewals during a lifetime, indicated the injustice of charging it upon the remainder-men or the reversioners. Such a structure is properly chargeable upon the tenant for life.”
The person, therefore, vpho was liable in the case at bar for the expense of laying the pavement on the sidewalk was the life tenant, Meanor, or Kennedy who held Meanor’s life estate in the premises. He was the “owner” of the lot in contemplation of the act of 1851, whose duty it was to lay the pavement. In the absence of the statutory provision for enforcing payment of the claim, the borough could have brought a personal action against the life tenant, and recovered a general judgment which would have been a lien on all his real estate, and for which it could have been sold on an appropriate execution. ’ The remainder-men, on the other hand, were not liable personally for the debt, nor could their estates in the premises have been subjected in any way to the claim for laying the pavement.
But it is contended by the defendants, and this is the pinch of the case, that the estate of the remainder-men in the liened premises is made liable for the expenses of paving the walk by the provision of section 2 of the act of 1851, which provides
The mechanic’s lien Act of June 16, 1836, P. L/695, creates a lien as well as provides a remedy for enforcing.it against the building and ground covered by the building and appurtenant thereto for debts contracted for work done and materials furnished for the structure. A lien is a hold or claim which one person has upon the property of another as a security for some debt or charge : 2 Bouv. L. Dict. 226. The effect of the act of 1836, and prior legislation on the subject, was to make the claim a charge upon and payable out of the land itself. The land as well as the title of all persons in the land, whether leasehold, freehold, or in fee, were bound by a mechanic’s lien: Savoy v. Jones, 2 Rawle, 343; Bickel v. James, 7 Watts, 9; Holdship v. Abercrombie, 9 Watts, 52; Leiby v. Wilson, 40 Pa. 63 ; Waters v. Wolf, 162 Pa. 153. But in 1840 the legislature, believing that the construction put upon the act of 1836 which supplied all previous legislation on the subject worked injustice, enacted that “ the lien created by the act .... shall not be construed to any other or greater estate in the ground on which any building may be erected than that of the person or persons in possession, at the time of commencing the said building, and at whose instance the same is erected ; nor shall any other or greater estate than that above described be sold by virtue of any execution authorized or directed in the said act: ” Act of April 28, 1840, section 24, P. L. 461, 2 Purd. 1309. In speaking of this act in Leiby v. Wilson, 40 Pa. 63, Lowrie, C. J., said : “ It was not for such a case as this (lessee under an improvement lease) that the act was framed, but to correct the mischief developed in several cases (2 Rawle, 343,7 Watts, 9, 9 Watts, 52), of allowing the lien to sweep away by
If the claim of the borough in this case had been for work done or materials furnished to the life tenant in the construction of a building on the premises, it is apparent that without a contract with them no lien would lie against the estates of the remainder-men in the lot of ground, as they were not in possession, and their estates could not have been sold on an execution issued on a judgment recovered on the lien. Unless, therefore, a lien filed to enforce a claim against the life tenant for paving a sidewalk is to be extended so as to subject other estates than those bound by mechanics’ liens, the lien in this case would not subject the estates of the remainder-men to payment of the borough’s claim for paving the sidewalk in front of the premises sold on this lien. Here, the remainder-men were not in possession of the lot and had no right to the possession at the time the improvement was made.
There is and can be no sufficient reason assigned for extending a lien for paving a sidewalk beyond that of a mechanic’s lien, and for holding that the estates of the remainder-men in the property liened can be subjected to the payment of the claim. As we have seen, the duty to pave was on the life tenant. He was in possession of the premises and was required to make the improvement. He was the “ owner ” in contemplation of the act of 1851, as held by this court, who was required to pave the walk on request of the borough authorities. The act gives no authority to the borough to require the paving to be done by the remainder-men, for the reason, first, that it is the duty of the life tenant to pave, and,
There was no evidence in the case, aside from the lien itself, that the remainder-men were notified or required to pave the sidewalk and declined to do so. A demand and refusal are essential to sustain a claim under the act of 1851; and the borough has no right to collect either the cost or the penalty without a previous demand and refusal: Mt. Pleasant Borough v. B. &. O. R. R. Co., 138 Pa. 365. We do not think the lien avers notice to the remainder-men. It alleges that
It is further claimed by the deféndants that the lien and judgment thereon cannot be attacked collaterally in this action. But it is difficult to see that any judgment was entered or could be entered against the remainder-men on the scire facias. The judgment, as noted above, was entered against James Kennedy, Sr., Samuel Meanor, and Ann Meanor’s heirs. The remainder-men are alleged to be the heirs of Ann Meanor, deceased, but their names do not appear in any of the proceedings from the filing of the lien to the deed to the sheriff’s grantee. And none of them was served with notice to lay the pavement or was made a party to or served with
We have not overlooked the sheriff’s return to the scire facias which shows that a copy of the writ was left at the residence of John B. Meanor, nor the return to the alias scire facias which shows a similar service of the writ on John Meanor. But there is nothing in the case whatever showing that either of these men, if different individuals, was a remainder-man, or that either of them was J. B. Meanor, a remainder-man and one of the plaintiffs in this action. Hence, there is nothing in this record to show that J. B. Meanor, one of the heirs of
For the reasons above stated, we are of opinion that the lien filed by the borough to enforce the payment of the claim for paving the sidewalk in question was without validity as to the heirs of Ann Meanor, deceased, the remainder-men; that the judgment thereon was not entered against them and did not bind their interests or estates in the land; and that the sale and conveyance by the sheriff on the judgment did not sell or convey their interests or estates in the land to the purchaser. It follows that the learned trial judge erred in directing a verdict for the defendants in this action, and that under all the evidence in the case the verdict should have been for the plaintiffs.
The judgment is reversed, and judgment is now entered for the plaintiffs and against the defendants for that part of the premises described in the writ to which no disclaimer was entered by defendants, with six cents damages and costs.