33 Ind. 30 | Ind. | 1870
The only question in the case arises on the ruling of the court in sustaining the demurrer to the second paragraph of the appellant’s answer.
The 69th section of the act of 1867, for the incorporation of cities, (Acts 1867, p. 66) provides, that “the owners of lots bordering on such streets or alleys, or the part thereof to be improved, shall be liable to the contractors for their proportion of the costs, in the ratio of the first (front) line of lots owned by them to the whole improved line,” &c.
In the case of The City of New Albany v. Cook, 29 Ind. 220, a lot, bordering on that part of the street improved, had been subdivided before the order for the improvement was made, and the subdivisions were owned by different persons. No part of one of the subdivisions bordered on the street improved. And it was held, after a careful consideration of the question, that the owner of the subdivision bordering on the street was alone liable for the assessment. That decision was made under the act of 1865; but
But it is insisted on the part of the appellee, that the appellant was the owner of the whole lot on the 22d of April, 1867, when the order for the improvement was made, and that the fact that Smith became the owner of all that part of it bordering on the street and extending back to the railroad, on the 27th of April, 1867, did not exempt the residue of the lot from liability for the improvement; and reference is made to section 71 of the act of 1867.
It will be observed that the second paragraph of the answer does not allege, or admit, that the appellant was the owner of that part of the lot between the street and the railroad at the time the order, was made for the improvement. It alleges that Smith was the owner of that part of the lot on the 27th of April, 1867, and still is such owner.; but whether he became the owner on the day named, or before that time, does not appear; nor can it be inferred from the allegation that he purchased it of the appellant. But aside from this, and assuming that the appellant was • the owner of the whole lot until the 27th of April, 1867,. and that he then sold all that part of it bordering on the-street and extending back to the railroad, and how stands. the question?
The 71st section of the act of 1867, referred to by the-appellant, after providing for an appeal from the precept in-, such cases, proceeds thus: “ If no such appeal shall have been taken aforesaid, then it shall be the duty of such treasurer,, within ten days after the expiration of said twenty days, to-lay said precept upon the lot or land therein described, and* to sell the same, or so much thereof as may be necessary to pay such assessments with costs and charges; but before • any such sale, he shall give notice of the time and place-thereof by advertising the same for three weeks successively in a newspaper printed and published nearest to such lot' or land, if any such be printed and published, within- the-
We-do not understand this provision as fixing the liability for such assessments upon those who may own the lots, or pai’ts thereof, bordering on the improvement, at the date of the petition, or order of the common council for such improvement, or as creating a lien from that time upon the entire lot for the assessment, if the whole should then be-owned by the same person.
The contractor, 'in whose favor the estimate is made, has no interestin the -matter until he contracts to make the improvement, and it-would seem absurd to suppose that it ■was’-intended to create a lien in his favor before he could 'have-any interest in the subject-matter, or had assumed any ■liability whatever. There might be propriety in providing that no change in the ownership of a lot bordering on the improvement, or of any part thereof, after the work is let, should lessen the -security -of -the contractor for the payment of the assessments.
But we do not think the provision cited has any relation to the subject of such -liens.
Section 70 provides for estimates from time to time as the work progresses, and the -payment thereof to the contractor by those liable therefor, and declares that such estimates shall be a lien upon the ground upon which they are assessed to the same extent that taxes are a lien. The assessments are required to be made against the owners severally, -in proportion to -the number of front feet owned by -each bordering on the .improvement; and then it is provided
An objection is urged to the sufficiency of the transcript— which, under the statute, occupies the relation of a complaint — on the ground that it shows that the assessment on the lot was made jointly against the appellant and Smith, instead of a separate assessment against each. This question is not presented upon the face of the transcript, and is not therefore reached by the demurrer or by an assignment of error. The assessment is made upon the whole lot as being owned by the appellant and Smith. This must be understood as asserting a joint ownership, as tenants in common, and if so, the assessment would be properly made against the owners jointly. The answer however avers that
We think the court erred in sustaining the demurrer, and the judgment must therefore be reversed.
Judgment reversed, with costs, and the cause remanded, with directions to the court below to overrule the demurrer to- the second paragraph of the answer, and for further proceedings not inconsistent herewith.