Alley v. Lyon

delivered the opinion of the court.

A majority of the court who heard the argument have come to the conclusion that the decree made in this case ought to be reversed.

The bill is filed for the purpose of removing a cloud upon the title to real estate of the plaintiff, created by a special improvement tax .title.

Mr. Alley became the purchaser of these lots, and has filed a bill to remove the cloud of which he complains. The printed statement of counsel collates the statutes which relate to the imposition of taxes for special improvements. .It would take some time to analyze these statutes, and perhaps it is unnecessary to do so, because we think a very brief statement of the system can be made without referring to them in detail.

The work was performed in 1870, under the act of the common council of the corporation of Washington, that was passed on the 2d of November, 1869 ; and it is conceded that ■that ordinance was in conformity to an act of Congress authorizing the common council to make local improvements and to lay and collect taxes upon the lots, upon the line of work.

At that time the first step in the process was an ordinance by the common council, and the ordinance in the present case designated the place where the improvement was to be made, on P street, on the north side, between Sixteenth street and Rock Creek. To defray the expenses, a special tax equal to the amount of the cost was thereby levied upon the lots bordering upon the improvement. The ordinance also provided that that tax should be assessed and collected in conformity with the provisions of the act of October 12, 1865.

Other ordinances provided for the appointment of a superintendent and inspector of streets, who was to make plats, fix the grades, superintend the work, and make assessments upon the lots to defray the cost of the work.

The ordinances required the appointment by the mayor *482of two assistant commissioners, to be selected from the line of the improvement, and they were to supervise, with the ‘superintendent and 'inspector';' and control -the work as it progressed, and the mayor was-to pay no bills for this work unless they were signed by these commissioners and by the superintendent.

When the work was completed, the inspector and superintendent was charged with the duty, as I have stated, of making the assessment, of summing up the aggregate expense of the work, of stating the amount due from each person, and he was required to deposit this roll of assess•ment with the register (an officer which no longer exists), and the register was then to put it into the hands of the collector. It .then became the duty of the collector to enter it upon what was called a tax ledger, kept in his office, and notify the parties of the amount due from each within thirty days.

This appears to have been the process at that period of levying taxes for such improvements.

This work was authorized in November, 1869, and the act which authorized it laid and levied the tax. The corn-tract was given to Mr. Birch, who was a professional paver, to pave and curb between Sixteenth street and Rock Creek, on the north side of P street north. He entered upon the execution of his contract, and completed it in November following. Mr. William Forsyth was the superintendent and inspector; he prepared the statement for assessment, which I -have already described, upon the. conclusion of the work, and deposited it with the proper officer, the register, who placed it in the hands of the collector; it was then entered on the tax ledger, and presumably he gave the notices and collected the tax.

Now, the lots in question were omitted from that assessment.

This assessment bore the signatures of the street inspectors, and of the mayor. It bears date on the ITth of November, 1810. The lots are specified, so much for paving, so 'much for grading, so much for curbing, and so much for *483guttering. Each of these items being in a separate column, and then the total amount is carried out.

It is executed by "William Eorsyth, superintendent of streets, by Hiram Brown, E. M. Davis and Eobert Armor, assistant commissioners, and on the corner it is approved by M. G-. Emery, mayor. ■

The lots in question are upon the line of this improvement, and they are numbered from one to twelve, between Seventeenth and Eighteenth streets, on the north side of P street, and it is admitted that they were not entered upon this statement at that time nor until a year afterwards. There is a memorandum which embraces lots from one to twelve in red ink, and which reads:

“This work was done at this date, but at request of the owner not entered until November 17, 1871.”

And that is signed, William Forsyth, surveyor.

Between the completion of the work and the execution of this memorandum, public events of considerable importance in the District had occurred. The old corporation had been extinguished, and a District government had been established with new officers, and with provisions in regard to improvements that varied somewhat from those that had preceded it.

It is of vital importance in this case to bear in mind that, at the time the sheet was deposited with the register, there was no mention of these lots.

It appears that Thomas Young, at the time of the improvement, was the owner of the property. He entered into an agreement with the contractor to pay him ninety per cent, of the contract price, and the inducement was that tha-t was more than the contractor would have realized from the sale of the certificates in the market.

About this arrangement there appears to be no dispute. But from the entry it would appear that the owner had requested the superintendent not to make it, and that inference is very natural in view of the arrangement to pay for the work.

Mr. Young, becoming somewhat alarmed at the extensive *484improvements that were then going on, withdrew from this agreement and notified the contractor that he would not stand by it. In the meantime, on the 12th of October, 1871, Young conveyed the lots to Hallett Kilbourn. That was just one month before the entry was made in red lines.

The complainant states in his bill that Kilbourn searched the assessment rolls and found that these lots were not assessed, that he had no knowledge of any lien resting upon the, property, and that the purchaser was a bona fide purchaser without notice. Kilbourn then conveyed to Latta, Latta conveyed to Sunderland, and Sunderland to plaintiff who took and recorded his title some time in April, 1881, long, however, after the entry in the red ink had been made. But he claims that he took the title unaffected by this assessment, just as Kilbourn did.

And the question is whether the lien to defray the expense of the improvement attached itself in such a way as to affect Mr. Kilbourn with notice.

I have stated that the ordinance of the common council authorizing this work to be done, levied and assessed a tax to defray its expense, and we are all agreed that that constituted a lien upon the property.

It is, however, provided in the act, that the tax shall be assessed and collected in conformity with the provisions of the acts which I have already enumerated. Until this is done it is very clear that the lien created by the act authorizing the work is inchoate, and that it does not become complete and absolute until the.assessment or statement is made by the proper officer.

How can that affect this case ? The assessment for the work had been made; it had been made by the proper officer, and there is no fault found with it. That assessment does not exhibit the lots in question as being subject to any lien or to any assessment, and it is stated in the bill that Kilbourn purchased without any constructive or actual notice of the lien of the assessment. '

It is to be remembered that the assessments of these lots were not omitted by mistake, or through ignorance or from *485negligence, but their omission appears to have been intentional and at the request of the party then owning the lots.

Now, can it be possible that the municipal authorities can withhold purposely an assessment at the request of anybody, to the injury of a bona fide purchaser? We think not. We are of opinion that Kilbourn having exercised all the diligence which is required of a bona fide purchaser, takes his title free and clear of this tax.

The law requires that a record shall be made of the . assessment and it designates the place where this record is to be found. There is no other place to which parties can resort for information. Having exhausted all the information that the law puts them in possession of, we think they have met the obligations required of an honest purchaser:

A position was taken that the party should be required to pay the tax due before he can ask this court to remove the cloud upon his title. That is a very well established doctrine both in this court and in the Supreme Court of the United States in a proper case, and if Mr. Young; the owner of the property, were here seeking to get rid of this tax and this cloud, on account of the fact that the assessment was not made properly,' we should require him to come into court with the amount of the tax before granting him any relief.

But Kilbourn does not stand in that position at all. He is a bona fide purchaser, and it is on account of this assessment having been intentionally withheld from the assessment roll that he made the purchase and paid the value of the land.

If this be the case, and I do not see that there is any escape from it, he has paid this tax once in the purchase of the land, and it would be inequitable to call upon him to pay it again.

We do not think, therefore, that this is a case in which that doctrine can be applied.

We are, also, of opinion that Mr. Alley takes all the title that Kilbourn did. It appears that Mr. Alley received from the District government $788, less or more, as a drawback for material that had been used in this improvement, after *486•he became the owner of the land, and it is said that he is estopped by that circumstance.

. While we are not disposed to adjudicate to whom the $788 belongs, we doubt very much if it belongs to Mr; Alley. The District of Columhia, who paid it, is not.a party to this proceeding. If the District were here we would probably be inclined to direct him to return it. But .we do not think that that affects his title to this property at all. That is a •matter in controversy between the parties who may be entitled to it, and so we think our decision ought not to be influenced by it. .. ■

For these reasons, the court are of opinion that the decree helow is erroneous and should be reversed.

dissenting, said:

I have some difficulty, on certain points, in concurring in the opinion of the majority, and I shall state my reasons very briefly.

Congress gave , to the corporation of Washington the power to order these improvements and to charge them upon the land. Under that power they passed this act:

“ That the mayor be, and he is hereby authorized and requested to cause the curbstones to be set, and the footways and gutters to be paved, on the north side of P street north, between 16th street west and Rock creek; the work to be contracted for and executed in the manner and under the superintendence provided by law; and to defray the expenses of said improvement, a special tax equal to the cost thereof is hereby imposed and levied on all lots or parts of lots bordering on the line of the improvement; the said tax to be assessed and collected in conformity with the provisions of the act approved October 12, 1865.”

We find in the act of 1865 a reference to earlier acts, and the whole system is laid out plainly.

■ Now, I think we have agreed as to the effect of this statute, but I lay more emphasis on it than my brethren. The effect of this ordinance was to charge this property with a burden. The assessment was for the ascertainment of the quota of *487each lot, but' the charge was there perfect and absolute. I lay that down more strongly than my brethren. The legal liability of the lot for the tax, the amount of which was to be ascertained, was perfect and cannot be moved by any omissions.

What then was the position of this purchaser when he took these lots ? He found there was no assessment, but he was warned that the lots were liable. There was perfect evidence that the lots were liable, and he had no knowledge that that liability had been discharged, nor any right to presume that it had been. I am not aware that there is any presumption of law, after you prove an indebtedness, that it is paid. You prove first the debt, and there is a presumption of its continuance.'

Then thispurchaser had knowledge through this ordinance that there was absolutely a charge on this property. It is true it nowhere appeared that the proportion of each lot had been assessed upon it; but it did appear that the lot was under a charge for whatever its proportion might be.

We find certain proceedings taken'7 afterwards by the claimant of this charge, the owner of this property, which are held to he irregular. There was no assessment on these lots at the time when the assessment was made on the other ■fifteen lots in the same square. It is said that’ the assigiior of the present defendant had something to do with keeping it off the record. We have been furnished with a stipula•tion in which it appears as one of the facts, that that was done at the request of Mr. Young, the owner of the lots. It is not asserted that it was done by Mr. Birch. Birch says — and I do not find him contradicted anywhere — that he ■ made no stipulation (no bargain, is his language) for any specific time. It is only a piece of guess work, from the ■ general language of his affidavit, as to whether he made any contract to keep it off. The evidence is, that the owner of the lots asked the superintendent and inspector, or perhaps went to the register, and asked him to keep it off the assessment list, and it was kept off.

But all the world was advised that there was a charge on *488this property, arid they had no information that that charge had been taken off.

That charge, whether ascertained by assessment or not, has been assigned to this defendant, and' the plaintiff comes here asking relief against the defendant, who owns a charge ■on this property. The amount was not ascertained by the assessment, but it was a charge nevertheless. It was not what I call inchoate, though my brethren so view it. It was a charge the exact amount of which was not yet ascertained, but, nevertheless, a perfect charge. And in this bill he asks for relief against a man who has an ascertainable charge upon his property, without offering in any way to settle with him.

Now, the defendant is not entitled himself, as I should say, to the benefits of a certificate of indebtedness bearing ten per cent., but-I should require the party to pay the defendant the charge that he owns on the plaintiff’s property, with six per cent, interest, before I would give him any relief. The amount can be ascertained, and it is fairly ascertained here. It is the balance of the whole, because after the equity of the other fifteen lots is ascertained, we know exactly what it is. It is $2,045 of original liability. I do not see why the plaintiff is entitled, when we have got this whole matter here, to say that just because this is a cloud, and because he can 'demonstrate that the legal title claimed by the defendant ought to be brushed away, that he will have that done first, and leave this very defendant after-wards to take steps for the ascertainment of his rights when we know now what they are.

These are the grounds upon which I am compelled to dissent from the conclusion of my colleagues. If the plaintiff will pay this debt he will be entitled to relief, because, I think, this'title by purchase cannot stand. But I do not think we ought to help a man, who is in debt more or less to the very party against whom he is asking relief, unless he offers to pay what is justly due.