« PreviousContinue »
money; but this does not prove that Chamber- to a purchaser, under such circumstances, lain could himself repudiate that part of the and deny the owner of the property the right contract by which he undertook to locate the of possession, under such conditions, would certificate, and so, disregarding his obliga- extend the rule beyond the limits of precetion, have subjected the certificate to the dent or principle. The purchaser at the adpayment of the money borrowed. It was an ministrator's sale acquired no title to the cerentire contract, and in all probability the tificate. Neither did he acquire a right to money advanced was to pay the expenses of the mortgage, nor was he subrogated to any location and survey, since no interest was to right of Chamberlain as to the debt due from be paid until the lapse of 12 months,-a time Evans, or lien upon the land or certificate. sufficient within which to have performed And the district court and court of civil apthe work of locating and surveying the land. peals erred in so holding, for which errors Whether we consider the mortgage as being the judgments of the said courts are reversed, upon the certificate or the land when located, and judgment is here rendered that plaintiff it was nothing but a lien, and did not invest in error, M. D. Roberts, take nothing by his Chamberlain with title.
suit, and that defendants go hence without The sale by a mortgagee of his interest, in day, and recover of said plaintiff in error the mortgaged property will not, in this state, all costs in this behalf expended, in all courts. operate as a transfer of the mortgage, unless The intervener, C. P. Woodruff, showed by there is something to indicate that it was in- uncontroverted evidence that he had acquired tended to assign the mortgage. Jones, Mortg. the title of defendant Stewart to that part $ 808; Perkins v. Sterne, 23 Tex. 563; Miller of the land in controversy deeded to said v. Boone (Tex. Sup.) 23 S. W. 574; Swan v. Stewart, which is not denied by Stewart, and Yaple, 35 Iowa, 248; Aymar v. Bill, 5 Johns. no evidence to the contrary appears. It is Ch. 570; Peters v. Bridge Co., 5 Cal. 334; therefore ordered that the said C. P. WoodNagle v. Macy, 9 Cal. 426; Delano v. Ben- ruff recover of the defendant W. E. Stewart nett, 90 Ill. 533; Greve v. Coffin, 14 Minn. the land described in the plea of intervention, 345 (Gil. 263); Hill v. Edwards, 11 Minn. 22 with all costs of the intervention. (Gil. 5); Gale v. Battin, 12 Minn. 287 (Gil. 188); Weeks v. Eaton, 15 N. H. 145. A different rule obtains in some states, but it is based upon the doctrine that the mortgagee, after condition broken, has the legal title and
CONNOR v. CITY OF PARIS. right of possession. Welch v. Priest, 8 Allen, (Supreme Court of Texas. May 21, 1894.) 165; Hunt v. Hunt, 14 Pick. 374; Dorkray v. MUNICIPAL CORPORATIONS--STREET IMPROVEMENTS Noble, 8 Me. 278. Such a doctrinė is wholly
-VALIDITY OF ORDINANCE - APPEAL - RENDIinconsistent with the rules of law which gov
TION OF JUDGMENT. ern the rights of mortgagor and mortgagee
1. Under a city charter authorizing street in this state. In its opinion the court of civil
improvements to be made whenever, by a two
thirds vote of the aldermen, it is deemed for appeals said: “There is but little, if any, the public interest, an ordinance providing for difference in principle between this case and
such improvements is valid without an express that long line of decisions in this state which
declaration that it is deemed for the public in
terest. holds that a purchaser at a void judicial sale 2. A charter authorizing a city to assess made to satisfy a valid lien, by reason of the cast of street improvements against adjahis subrogation to the lien, can hold the
cent property is valid, in the absence of conland until it is discharged." Our courts have
3. The legislature may authorize the colgone far in applying this equitable doctrine, lection of interest on the unpaid installments but in no case has it been held that where a of street assessments. man's property has been sold under a judg
4. A city ordinance providing for street imment to which he was not a party the pur
provements is not a special law, within the
meaning of Const. art. 3, § 57, prohibiting the chaser acquires a right thereby against such passage of special laws without notice to the owner of the property. The doctrine is persons affected thereby; and such ordinance
is valid without notice, when none is required founded upon the proposition that when the
by charter. purchase money has been applied to the ex- 5. Where it is the duty of the supreme tinguishment of a lien upon the property court to render such judgment as the trial court sold, when the sale was made in a proceed
should have rendered, an erroneous judgment
will not be rendered simply because errors have ing to enforce that lien, the purchaser will not been assigned. be subrogated to the rights of the lien hold- 6. In an action to foreclose the lien of a er. In this case the certificate was not sold
street assessment payable in annual install
ments, brought when the first installment fell as the property of Evans, but as belonging to
due, the district court entered judgment forethe estate of Chamberlain. It was not sold closing the lien for all the installments, which to satisfy the mortgage debt, and there is
the court of civil appeals reformed, foreclosing no evidence that the purchase money was ap
the lien for the first installment, with an order
to sell the land subject to the other installplied to the payment of that debt. The court ments. Held not a judgment for the same that made the order could not have had juris- amount or of the same nature as that of the diction to order the sale, as against Evans,
district court, within section 37 of the act orwho was not a party to the proceeding. To
ganizing the court of civil appeals, authoriz
ing that court, in such case, to render judgment apply the equitable doctrine of subrogation against appellant and his sureties.
7. Under a city charter authorizing the city annual installments, with interest thereon to collect interest on unpaid installments of
not exceeding eight per cent. per annum; but street assessments, interest on each installment can only be collected when such install
any person interested in such improvement ment falls due.
may pay his part in cash before the issuance
of bonds to cover the same. The city counError from court of civil appeals, fifth su
cil of the city of Paris on July 8, 1889, by a preme judicial district.
vote of two-thirds of all the aldermen electAction by the city of Paris against E. S.
ed, duly passed an ordinance entitled 'An Connor to foreclose the lien of a street as
ordinance to improve Bonham street,' which sessment. The court of civil appeals modi
is substantially as follows: fied and affirmed a judgment for plaintiff,
“Be it ordained by the city council of the and defendant brings error. Reversed.
city of Paris: The opinion of the court of civil appeals
• "Section 1. That curbing, guttering and (RAINEY, J.), delivered February 14, 1894,
paving are hereby ordered to be built and was as follows:
put in on Bonham street, between the Union
Depot and the intersection of Mill street; "Conclusions of Fact.
that is, a point two blocks west from the "The city charter of the city of Paris pro- public square, the same is hereby ordered to vides as follows: "The city council shall be
be paved,' etc., 'full width of the street bevested with full power and authority to tween said points, beginning at the main grade, pave, repair, or otherwise improve
track of the St. Louis and San Francisco any avenue, street, alley, or other highway, Railroad, and thence east to the eastern edge or any portion thereof within the limits of of Mill street, with the exception of nine feet said city, whenever by a vote of two-thirds
of sidewalk on each side of the street. That of the aldarmen elected they may deem such the curbing shall be made of stone, and the improvement for the public interest; two-guttering and paving to be made of bois thirds of the cost of which grading, paving d'arc blocks six inches in length to be placed or repairing, shall be borne by the owners of on an inch board; the plans and specificathe property fronting on such alley, avenue, tions to be more particularly furnished by street or other highway so improved; and to
the city engineer, and approved by the city make provisions for the payment of the two
council, and the work all to be done under thirds of the cost of such improvements and the supervision of the city engineer. the cost of collecting the same, the city coun
“ 'Sec. 2. The expense of such improve cil shall have full power to assess, levy and ment shall be borne in the following proporcollect a tax upon the lot or lots fronting or tions: The railway companies now occupyadjoining on such alley, avenue, street or oth- ing and using any part of said street shall er highway, which tax when so levied and
pay for the improvement of such part of the assessed, shall be a valid charge against the same as is used and occupied by them, and owner or owners of such lot or lots, as well the property owners fronting or abutting on as a lien and incumbrance upon the property said street, between said points, shall pay itself, which amount may be collected and two-thirds of the remaining cost, less the said lien enforced in any court of competent cost of intersections of cross streets, in projurisdiction: provided, that the city alone portion to the number of fronting or abutting shall pay for the other one-third of such im- feet of land they may so own on said street, provements, and for the improving of the in- between said points, and the city of Paris tersections of the streets from block to block shall pay the remaining cost of said improveacross the streets either way; and provided ment. further, that no one shall be made to pay for “ 'Sec. 3. The cost to be paid by each propany improvement done on any street that erty owner and by the railway companies may be paved or otherwise improved as shall be estimated and collected as is now or hereinafter provided, save for the propor- as may be hereafter provided by ordinance, tional part of the street that may be in front and in conformity with the city charter, and of or adjoining his property and to the cen- the cost assessed against each property ownter of such street, and in no event shall such er and railway company shall be a lien and owner be compelled to pay for the improve | incumbrance upon the property against ment of such street, not including sidewalks, which it is assessed. more than 25 per cent. of the assessed value “ Sec. 4. That bids be advertised for ten of his property fronting thereon, except with days in Paris Daily News for said improve. his written consent and except property not ments, and the contract to be let in accordassessed, which shall be liable for its propor- ance with the provisions of the city charter tion according to frontage, and that any rail- in such cases made and provided. road or street railway company shall be lia- * 'Sec. 5. That this ordinance take effect ble for any grading, paving or other im- and be in force from and after its passage. provement made upon any portion of said " "This ordinance adopted July 8th, 1889, street used or occupied by said company, to and approved by the mayor July 9th, 1889. be paid for in same manner as by abutting Attest: John Harvey, City Secretary. M. J. owners: and provided further, that such im- Hathaway, Mayor.' provements shall be paid in not less than five "In pursuance of said ordinance, said Bonham street was improved, and the costs it unnecessary to pass upon the question bere thereof assessed proportionately against the raised, further than to say, if the legislature owners of the property fronting on said did not possess the power to confer on the street. The sum of $246.73 was assessed city government the authority to levy such against appellant, which was a lien upon his an assessment upon the individual, it would lot fronting upon said street, the same as de- not render void that part of the charter auscribed in plaintiff's petition and which said thorizing an assessment against the property. sum was payable in ten annual installments, “4. The legislature has power to confer upwith interest; the first due February 24, on the city government authority to levy an 1891, and the others on the 24th day of Feb- assessment for improvements of a street, ruary annually thereafter. It was further upon the property frouting thereon, and to provided by ordinance that 'all deferred pay- authorize it to regulate the manner and time ments shall bear interest at the rate of 8 per of payment, with interest. City of Galveston cent. per annum and shall be paid annually; v. Heard, 54 Tex. 447. that is to say, one-tenth of the principal and “5. Where it is not made a prerequisite by all the interest shall be paid annually to the the charter, to the passage of an ordinance city tax collector.' The assessment was for the improvement of a street, that notice made February 24, 1890, and drew interest should be given to the property owners in orfrom that date, which interest was required der to create a charge upon the property, the to be paid annually.
failure to give notice will not render such as
sessment illegal. As no such requirement is "Conclusions of Law.
contained in the charter of the city of Paris, “1. It was not necessary for the city coun- nor in the ordinance for the improvement of cil, by a formal expression, to declare that Bonham street, the failure to give notice does they deemed the improvement of Bonham not affect the validity of the assessment made street for the public interest, in order to in this case, and the same is legal and bindmake the ordinance providing for such im- ing. City of Galveston v. Fleard, 54 Tex. provement valid. The act of passing an or- 429; Adams v. Fisher, 63 Tex. 651; Dill. dinance providing for such improvements by
Mun. Corp. 03. a two-thirds vote of all the aldermen elected “6. The assessirent made by the city counwas a sufficient declaration that they deem- cil for the improvement of Bonham street, ed such improvement to be for the public against appellant's property, was valid, and interest, and was a substantial compliance
constituted a valid lien upon said property to with the provision of the charter of the city secure the paymert thereof. of Paris which authorizes such improve- “7. The court erred in rendering judgment ments to be made ‘whenever by a vote of against appellant for the installments not due two-thirds of the aldermen elected they may
at the time of trial, and in ordering a sale deem such improvement for the public inter- of defendant's property for the aggregate est.' Wood v. City of Galveston, 76 Tex. amount of such installments. The judgment 132, 13 S. W. 227; 10 Am. & Eng. Enc. Law, should have been declaring the validity of .P. 282, note 2; City of Raleigh v. Peace, such assessment, rendering judgment for the 110 N. C. 32, 14 S. E. 521; Elliott, Roads & installment due, with interest due on the S. 385.
whole amount from the date of the assess"2. The constitution places no limit upon ment to the time of trial, and foreclosing the the power of the legislature as to the lien on said property for the amount of same, amount it may authorize a municipal cor- and ordering the property sold subject to the poration to impose by way of assessment payment of the other installments, and inon property for local improvements within terest thereon, when due. the city. Therefore, a charter which au- “8 There being no other error in the judgthorizes the city council to make the cost of ment, the same will be reformed as indicatthe improvement of its streets a charge up- ed, and affirmed." on property fronting upon such streets is
A. P. Park and Burdett & Connor, for plainvalid. Roundtree v. City of Galveston, 42
tiff in error. H. D. McDonald, for defendTex. 613; Taylor V. Boyd, 03 Tex. 533;
ant in error. Adams v. Fisher, Id. 657.
"3. The charter of the city of Paris authorizes a personal judgment against an BROWN, J. The city of Paris is a municiowner of property fronting on a street, pal corporation created by special act of the against whom an assessment has been made legislature, approved March 27, 1889, of for improvements made upon such street. which we quote below that part material to Appellant contends that the legislature was the determination of the questions presented without power to grant to the city such in this case, as follows: "The city council authority, and for that reason renders the shall be invested with full power and ausection of said charter void which seeks to thority to grade, pave, repair, or otherwise empower said city to levy a local assessment improve any avenue, street, alley, or other for street improvements upon the individual. highway, or any portion thereof within the There was no personal judgment rendered limits of said city, whenever by a vote of twoagainst appellant in this case, and we deem thirds of the aldermen elected they may deem such improvement for the pablic inter- of sidewalk on each side of the street. That est; two-thirds of the cost of which grad | the curbing shall be made of stone, and the ing, paving or repairing shall be borne by the guttering and paving to be made of bois d'arc. owners of the property fronting on such al- blocks six inches in length to be placed on an ley, avenue, street, or other highway so in- inch board; the plans and specifications to be proved; and to make provisions for the pay- more particularly furnished by the city enment of two-thirds of the cost of such im- gineer, and approved by the city council, and provements and the cost of collecting the the work all to be done under the supervision same, the city council shall have full power of the city engineer." to assess, levy and collect a tax upon the lot The city made the improvement on Bonor lots fronting or adjoining on such al- ham street, and assessed upon the lot in ley, avenue, street, or other highway, which plaintiff's petition described, as one-third of tax when so levied and assessed, shall be a the improvement in front of the lot on said valid charge against the owner or owners of street, the sum of $246.73. The lot fronted such lot or lots, as well as a lien and incum- on Bonham street, and was the property of brance upon the property itself, which amount plaintiff in error. The sum assessed, accordmay be collected and the said lien enforced ing to another ordinance of the city, was to in any court of competent jurisdiction; pro- be paid in 10 equal installments, and to vided that the city alone shall pay for bear 8 per cent. interest per annum, payable the other one-third of such improvements, annually. The first installment fell due on and for the improving of the intersec- the 24th day of February, 1891; and, Connor tions of the streets from block to block having refused to pay either installment or across the streets either way; and pro- annual interest, the city sued in the district vided, further, that no one shall be made to court of Lamar county to foreclose the lien pay for any improvement done on any street of the city upon the lot for the first installthat may be paved or otherwise improved as ment, and first year's interest on the whole hereinafter provided, save for the propor- amount. In the petition it was alleged that tional part of the street that may be in front the other 10 installments would fall due, of or adjoining his property and to center of respectively, on the 24th day of each sucsuch street, and in no event shall such owner ceeding year, until and including the year be compelled to pay for the improvement of 1900, and prayed for general relief. Connor such street, not including sidewalks, more filed a general demurrer and special excepthan 25 per cent. of the assessed value of tions, and a general denial, which exceptions his property fronting thereon, except with his and demurrer were overruled, and judgment written consent and except property not as- rendered, foreclosing the lien of the city sessed, which shall be liable for its proportion upon the lot for the first payment due, and according to frontage, and that any railroad first year's interest upon the entire assessor street railway company shall be liable for ment, amounting to the sum of $46.86, and any grading, paving or other improvement also ascertaining that the remaining nine paymade upon any portion of said street used ments would fall due at the times alleged, or occupied by said company to be paid for in including annual interest for each year upon
*. And provided further, that such im- | the unpaid installments, ordered that, when provements shall be paid in not less than the property should be sold, the purchaser five annual installments, with interest there- should execute to the city of Paris his notes on not exceeding eight per cent per annum; for each installment due, at the time that but any person interested in such improve the installment would become due, including ment may pay his part in cash before the annual interest, to bear interest, with a lien issuance of bonds to cover the same.” The upon the lot, -the balance, if any, to be paid city council did not, before adopting the or- to the defendant, he paying all costs. The dinance, declare that the improvement on court of civil appeals reformed this judg: Bonham street in said city was for the pub- ment so as to order the sale of the property lic interest; but, by a vote of two-thirds of for the first payment and first year's interest all the aldermen elected in said city, the on tìe whole amount for installments not council passed an ordinance, that part of due, subject to the city's lien, and judgment which involved in this case is as follows: against Connor and his sureties on his ap
"Be it ordained by the city council of the peal bond for the said sum of $46.86, and all city of Paris:
costs. "Section 1. That curbing, guttering, and The questions presented by the plaintiff in paving are hereby ordered to be built and put error for our determination are: First. That in on Bonham street, between the Union De- a declaration, by two-thirds of the aldermen pot and the intersection of Mill street; that elected in the city of Paris, that "they is, a point two blocks west from the public deemed the improvement for the public insquare, the same is hereby ordered to be terest," was a condition precedent to passpaved," etc., "full width of the street be- ing the ordinance ordering the improvetween said points, beginning at the main ment to be made, and, this not having been track of the St. Louis and San Francisco done, the ordinance is void. Second. That Railroad, and thence east to the eastern edge section 22 of the charter is unconstitutional of Mill street, with the exception of nine feet and void (1) because it authorizes a special tax on property in a particular locality for the law expressly required that a resolution the public interest; (2) because it authorizes a should, by the council, be passed, before the perpetual tax upon the property fronting on work could be undertaken; and the court the street to be improved, and because it there said, in effect, that if it had not been authorizes such tax to bear interest; (3) be- so required the passage of the ordinance cause the charter does not require notice to would have been a sufficient declaration. In be given of the intention of the council to Frosh v. City of Galveston, cited above, it levy the tax, and to cause the improvement was held that the report of the engineer was to be made, as being in violation of section made a condition to be performed before the 57, art. 3, of the constitution of the state. council could determine whether or not the Third. That the court of civil appeals erred work should be done. Nothing of the kind in entering judgment against the plaintiff in is embodied in this law. The thing to be error and his sureties upon the appeal bond declared is, of itself, necessarily considered for the amount of the first installment and and determined in the passage of the orinterest, and because the court erred in en- dinance ordering the improvement to be tering judgment against the plaintiff in error made. That the legislature may empower a and his sureties, or against the plaintiff for city to levy upon abutting property an asthe costs of appeal.
sessment to pay a part of the cost for imA city or town has no inherent right to as- proving a street upon which such property sess upon the abutting property on a street fronts is too well settled by the decisions of the cost of improvement of the street. Such this court to admit of argument. Roundtree power must be given by its charter, or some v. City of Galveston, 42 Tex. 625; Taylor v. law of the state; and in the exercise of the Boyd, 63 Tex. 533; Adams v. Fisher, Id. 651. power, when conferred, the requirements of It has likewise been settled that the legislathe law must be strictly followed, or the ture may authorize the collection of interassessment will be void. If the performance est upon taxes. City of Galveston v. Heard, of an act is made a condition precedent to 54 Tex. 447; Cooley, Tax'n, 436. the exercise of the power, the act so required It is claimed that the charter, so far as it must be performed substantially as direct- authorizes the assessment, is void, because ed, or the assessment will be invalid. El- no notice was required to be given by the liott, Roads & S.; Frosh v. City of Galves- council before the ordinance was adopted; ton, 73 Tex. 401, 11 S. W. 402; Merritt v. being in violation of article 3, § 57, of the Village of Port Chester, 71 N. Y. 309; Hoyt constitution. This was not a special law, v. East Saginaw, 19 Mich. 39. Neither by its within the meaning of that section, which language, nor by fair implication, does the has reference alone to the acts of the legischarter of the city of Paris make it a condi- lature. No notice was required, other than tion precedent to the exercise of the power that prescribed by the charter. Taylor v. to order the work to be done, or to levy the Boyd, 63 Tex. 533; Adams v. Fisher, Id. 651. assessment, that the council shall, by a two- The district court entered judgment forethirds vote, declare that it is "deemed for closing the lien for all the assessments, which the public interest." The object of the law the court of civil appeals reformed, and enwas to secure the citizen against hasty and tered judgment foreclosing the lien for the improper impositions of such burdens, by re- first assessment, and one year's interest on quiring that a vote of two-thirds should be the whole amount, with an order to sell the requisite to order the work. The council lot subject to the installments not embraced could not order it for any purpose other than in the judgment. This was not a judgment to meet the demands of "public interest,” for the same amount nor of the same naand the law will presume that in adopting ture as specified in section 37 of the act to the ordinance the council acted from law- organize the court of civil appeals (Laws ful motives. It is not necessary to declare Called Sess. 22d Leg. 31), and the court of beforehand, nor in the ordinance itself, that civil appeals erred in entering judgment the council deemed it to be in the interest of against the plaintiff in error (appellant in the public. The adoption of the ordinance that court) and his sureties for the installdeclared that as effectually as if it had been ment and interest for which it gave judg. so expressed. Elliott, Roads & S. p. 386; ment, and for costs of appeal. Connor shoud Stuyvesant v. Mayor, 7 Cow. 588; Young v. have recovered the costs of that court. The City of St. Louis, 47 Mo. 492; Kiley V. error shown above will require that this Forsee, 57 Mo. 390; Platter v. Elkhart Co., court reverse the judgment of the court of 103 Ind. 360, 2 N. E. 544. The cases of Mer- civil appeals and the district court, and enter ritt v. Village of Port Chester and Hoyt v. such judgment as the district court and the East Saginaw, supra, cited by plaintiff in court of civil appeals should have rendered. error, do not hold a contrary doctrine. In This presents a question not mentioned in the the case of Merritt v. Village of Port Ches-petition for writ of error. The twenty-secter, the law required the commissioners to be ond section of the charter of the city of sworn before entering upon the discharge of Paris authorizes it to collect interest, not to the duty imposed, and it was held that this exceed 8 per cent. per annum. Interest, unwas a condition precedent to the performance less otherwise expressed, is payable when of the duty. So, in Hoyt v. East Saginaw, the debt becomes due, and cannot be collected