Bd. of Com'rs of Hamilton Cnty. v. Nw. Mut. Life Ins. Co.

• Decision Date: 25 May 1926
• Docket Number: No. 23986.,23986.
• Citation: 209 N.W. 256,114 Neb. 596
• Parties: BOARD OF COM'RS OF HAMILTON COUNTY v. NORTHWESTERN MUT. LIFE INS. CO. ET AL.
• Court: Nebraska Supreme Court

114 Neb. 596

209 N.W. 256

BOARD OF COM'RS OF HAMILTON COUNTY

v.NORTHWESTERN MUT. LIFE INS. CO. ET AL.

No. 23986.

Supreme Court of Nebraska.

May 25, 1926.

Syllabus by the Court.

The word “landowner” as used in section 1724, Comp. St. 1922, embraces not only the owner of the fee, but mortgagees, whose mortgages are of record, and notice to them of the proposed organization of a drainage district under sections 1718-1743, art. 3, c. 17, Comp. St. 1922, must be given before special assessments levied against the land affected can become liens superior to the liens of the mortgagees.

When upon the organization of a drainage district under sections 1718-1743, art. 3, c. 17, Comp. St. 1922, the notice provided by the statute is not given to the holders of mortgages of record, special assessments made against the land covered by the mortgages will be held subject to the liens of the mortgages.

Appeal from District Court, Hamilton County; L. S. Hastings, Judge.

Suit by the Board of County Commissioners of Hamilton County, acting as Drainage Supervisors in and for Hamilton County, and for the Liebhart-Vetters Drainage District, against the Northwestern Mutual Life Insurance Company and others, to foreclose a lien arising under special assessments. From a decree for plaintiff, defendants appeal. Reversed and remanded, with directions.Fred C. Foster, O. K. Perrin, and S. M. Kier, all of Lincoln, and John A. Whitmore, of Aurora, for appellants.

Hainer, Craft, Edgerton & Frazier, of Aurora, for appellee.

Heard before MORRISSEY, C. J., and ROSE, DAY, GOOD, THOMPSON, and EBERLY, JJ.

MORRISSEY, C. J.

The board of county commissioners of Hamilton county, which under the statute constitutes the drainage board of that county, brought this suit to foreclose a lien arising under a special assessment levied against a quarter section of land within the “Liebhart-Vetters drainage district.” The holders of mortgage and judgment liens upon the land, as well as the holders of the fee, were made defendants. From a decree establishing plaintiff's lien as superior to all other liens and equities, defendants have appealed.

In plaintiff's petition it is alleged that the district was organized under the provisions of sections 1718-1743, art. 3, c. 17, Comp. St. 1922, and this allegation is expressly admitted in paragraph 2 of the answer. Prior to the organization of the district, the owners of the fee title executed and delivered the mortgages now held by the mortgage lien holders and these mortgages were placed on record. In the decree the court fixed the order of priority of the defendant's liens, and held them all to be inferior to the lien created by the special assessment.

It is claimed by appellants that the decree is contrary to law. They point out that section 1734, Comp. St. 1922, which constitutes a part of article 3, c. 17, under which the district was organized, does not in express terms make the assessment levied against the property for the improvement, a specific lien upon the property. In the brief of appellee it is said that the assessment became a lien under the provisions of section 1687, Comp. St. 1922, as well as under section 1728, Comp. St. 1922. It is also said that if the court reaches the conclusion that the district was organized under sections 1718-1743, art. 3, c. 17, Comp. St. 1922, and that that article constitutes a separate and distinct plan of drainage, “then the special assessment becomes taxes or liens upon the land within the district.” But as it is alleged in the petition and admitted in the answer that the district was organized under article 3, c. 17, Comp. St. 1922, it is not for the court to make a holding on that question. That is fixed by the pleadings.

By section 5826, Comp. St. 1922, which was enacted in 1921, subsequent to the levy here sought to be enforced, it is provided:

“All special assessments, regularly assessed and levied as provided by law, shall be a lien on the real estate on which assessed, but shall be subject to the general taxes mentioned in the last...