149 P. 476 | Or. | 1915
delivered the opinion of the court.
Let us adopt plaintiff’s view and apply it to Mrs. Stith’s situation. She bought this property with an assessment upon it, the validity of which was in controversy. Plaintiff was so confident the assessment would be declared invalid that he was willing to take $3,600 and assume the risk of paying it. He got his price, lost the suit, and paid the assessment. Now, if the money so paid is refunded to him, Mrs. Stith’s property must respond in increased general taxation every year until the bonds which take the place of the original assessment, together with their annual interest, are discharged. It will therefore be seen that there is nothing so inequitable about the method devised by the city as to render it obnoxious to law. Authorities have been cited to the effect that a right to a refund does not run with the land and will not pass with a conveyance thereof. Borton v. City of Portland, 62 Or. 544 (125 Pac. 847), Smith v. City of Minneapolis, 95 Minn. 431 (104 N. W. 227), and Bernays v. Wurmb, 4 Mo. App. 231, are cases relied upon; but an examination shows that the holding was made by reason of the wording of the ordinances under which the cases arose. Thus in Borton v. City of Portland the ordinance provided for a refund to “persons
“Where a municipal corporation has, after the commencement of a street improvement and after the collection of a special assessment therefor, wholly abandoned such improvement, a person, whose property has not been benefited in any manner by the work already done, and who has, by judicial proceedings, been compelled to pay the full amount of his assessment, is entitled to recover from the city the amount paid by him, with interest, as upon a failure of consideration.”
This case appears to state clearly the conditions of a recovery.
The case at bar may be distinguished in this: (1) The assessment here was finally declared legal by the highest tribunal, whereas in the case cited the assessment proceedings were by stipulation of the parties declared null and void. (2) In the case at bar the improvement had been completed and the plaintiff’s property had received the benefit of it before he sold to Mrs. Stith, while in the case cited the improvement had not been completed and plaintiff’s property had received no benefit; and, benefit to the property being the consideration, such consideration failed.
While there is testimony that nothing was added to the purchase price on account of the assessment, the same witness also testifies that there was an agreement at the time of the purchase that if it was adjudged legal plaintiff should pay it, so that the lien was considered and entered into the contract of purchase; and it would seem highly improbable that Mrs. Stith would have taken the property at the price she paid with a stipula
Considering the whole case made by plaintiff, we conclude that he has shown no right to recover either under the charter and ordinance or otherwise; and the judgment is reversed, and the cause remanded, with directions to enter judgment for defendant.
Reversed. Rehearing Denied.